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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 29, 2002
REGISTRATION NO. 333-_________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
____________________
GREAT PLAINS ENERGY INCORPORATED
(Exact name of Registrant as specified in its charter)
Missouri 43-1916803
(State of incorporation) (I.R.S. Employer
Identification No.)
1201 Walnut
Kansas City, Missouri 64106-2124
(816) 556-2200
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
JEANIE SELL LATZ
Senior Vice President - Corporate Services and Secretary
1201 Walnut
Kansas City, Missouri 64106-2124
(816) 556-2936
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
____________________
Copy to:
Steven R. Loeshelle, Esq.
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, New York 10019-6092
____________________
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE
PUBLIC: From time to time after the effective date of this
Registration Statement as determined by market conditions and other
factors.
If the only securities 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, please
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
effective registration statement for the same offering. ()
If delivery of the prospectus is expected to be made pursuant
to Rule 434, please check the following box. ()
____________________
CALCULATION OF REGISTRATION FEE
____________________
PROPOSED
TITLE OF EACH MAXIMUM
CLASS OF AMOUNT AGGREGATE AMOUNT OF
SECURITIES TO TO BE OFFERING REGISTRATION
BE REGISTERED REGISTERED(1) PRICE(1) FEE
Senior Debt
Securities
Subordinated Debt
Securities
Trust Preferred
Securities and
Related
Guarantees (2)
Common Stock, no
par value
(including
associated
preferred share
purchase rights)
Warrants
Stock Purchase
Contracts
Stock Purchase
Units (3)
TOTAL $300,000,000 $300,000,000 $27,600
(1)There are being registered hereunder such presently indeterminate
principal amount or number of Senior Debt Securities,
Subordinated Debt Securities, Trust Preferred Securities, shares
of Common Stock, Stock Purchase Contracts and Stock Purchase
Units with an aggregate initial offering price not to exceed
$300,000,000. Senior Debt Securities and Subordinated Debt
Securities are collectively referred to as "Debt Securities."
Debt Securities also may be issued to a trust in connection with
the issuance and sale of Trust Preferred Securities and later
distributed upon dissolution and distribution of the assets
thereof, which would include such Debt Securities for which no
separate consideration will be received. An indeterminate number
of shares of Common Stock may also be issued upon settlement of
the Stock Purchase Contracts, Stock Purchase Units or warrants.
Pursuant to Rule 457(o) under the Securities Act of 1933, and
General Instruction II.D. of Form S-3, which permits the
registration fee to be calculated on the basis of the maximum
aggregate offering price of all the securities listed, the table
does not specify by each class information as to the amount to be
registered, proposed maximum offering price per unit or proposed
maximum aggregate offering price.
(2)Includes the obligations of Great Plains Energy Incorporated
under the respective trust agreements, the applicable indenture,
the related series of Debt Securities and the respective
Guarantees, which include Great Plains Energy Incorporated's
covenant to pay any indebtedness, expenses or liabilities of the
trusts (other than obligations pursuant to the terms of the Trust
Preferred Securities or other similar interests), all as
described in this registration statement. No separate
consideration will be received for the Guarantees and, pursuant
to Rule 457(n) under the Securities Act of 1933, no separate fee
is payable in respect thereof.
(3)Each Stock Purchase Unit consists of (a) a Stock Purchase
Contract, under which the holder, upon settlement, will purchase
an indeterminate number of shares of Common Stock and (b) a
beneficial interest in Debt Securities, Trust Preferred
Securities issued by trusts or debt obligations of third parties,
including U.S. Treasury securities, purchased with the proceeds
from the sale of the Stock Purchase Units. Each beneficial
interest will be pledged to secure the obligation of such holder
to purchase such shares of Common Stock. No separate
consideration will be received for the Stock Purchase Contracts
or the related beneficial interests.
Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until Registrant
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 this
Registration Statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may determine.
- -----------------------------------------------------------------
The information in this prospectus is not complete and may be changed.
We may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This
prospectus is not an offer to sell these securities and it is not
soliciting an offer to buy these securities in any state where the
offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED APRIL 29, 2002
PROSPECTUS
GREAT PLAINS ENERGY INCORPORATED
$300,000,000
SENIOR DEBT SECURITIES
SUBORDINATED DEBT SECURITIES
TRUST PREFERRED SECURITIES AND RELATED GUARANTEES
COMMON STOCK
WARRANTS
STOCK PURCHASE CONTRACTS
STOCK PURCHASE UNITS
Great Plains Energy Incorporated may offer and sell from
time to time up to $300,000,000 of these securities. This prospectus
provides you with a general description of these securities. We will
provide specific information about the offering and the terms of these
securities in supplements to this prospectus. The supplements may
also add, update, or change information contained in this prospectus.
This prospectus may not be used to offer and sell these securities
unless accompanied by a prospectus supplement. You should read this
prospectus and the related supplements before you invest in these
securities.
The common stock of Great Plains Energy Incorporated is
listed on the New York Stock Exchange under the symbol "GXP." The
last reported sale of the common stock on the New York Stock Exchange
on April 26, 2002 was $23.87 per share.
Our principal executive offices are located at 1201 Walnut,
Kansas City, Missouri 64106-2124 and our telephone number is (816) 556-
2200.
____________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
NOR HAVE THESE ORGANIZATIONS DETERMINED THAT THIS PROSPECTUS IS
ACCURATE OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
____________________
We may offer and sell these securities through one or more
underwriters or agents. We will set forth in the related prospectus
supplement the name of the underwriters or agents, the discount or
commission received by them from us as compensation, our other
expenses for the offering and sale of these securities, and the net
proceeds we receive from the sale. See "Plan of Distribution."
THE DATE OF THIS PROSPECTUS IS ______________, 2002
The information in this prospectus is not complete and may be changed.
We may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This
prospectus is not an offer to sell these securities and is not
soliciting an offer to buy these securities in any state where ther
offer or sale is not permitted.
TABLE OF CONTENTS
About This Prospectus 2
Cautionary Statements Regarding Certain 3
Forward-Looking Information
Where You Can Find More Information 3
Great Plains Energy Incorporated 4
Use of Proceeds 5
Ratio of Earnings to Fixed Charges 5
Description of Debt Securities 5
Description of Trust Preferred Securities 16
Description of Guarantees 33
Relationship Among Trust Preferred Securities, 36
Debt Securities, and Guarantees
Description of Common Stock 37
Description of Stock Purchase Contracts and 39
Stock Purchase Units
Book-Entry System 40
Plan of Distribution 42
Legal Matters 43
Experts 44
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement filed
with the Securities and Exchange Commission using a "shelf"
registration process. By using this process, we may offer up to a
total aggregate dollar amount of $300,000,000 of the securities
described in this prospectus in one or more offerings. We may offer
any of the following securities: senior debt securities or
subordinated debt securities, each of which may be convertible into
our common stock, trust preferred securities and related guarantees,
common stock, stock purchase contracts and stock purchase units. We
may also offer warrants to purchase debt securities or shares of our
common stock. If we issue and sell trust preferred securities, we will
amend the registration statement of which this prospectus is a part to
include each trust issuer as a registrant for purposes of issuing and
selling trust preferred securities of that trust.
This prospectus provides you with a general description of
the securities we may offer. Each time we sell securities, we will
provide you with a prospectus supplement that will describe the
specific terms of that offering. The prospectus supplement may also
add, update or change the information contained in this prospectus.
If there is any inconsistency between the information in this
prospectus and the prospectus supplement, you should rely on the
information in the prospectus supplement. The registration statement
we filed with the SEC includes exhibits that provide more detail on
descriptions of the matters discussed in this prospectus. Before you
invest, you should carefully read this prospectus, the applicable
prospectus supplement and the information contained in the documents
we refer to in this prospectus under "Where You Can Find More
Information."
References in this prospectus to the terms "we", "us" or
other similar terms mean Great Plains Energy Incorporated, unless the
context clearly indicates otherwise. We are also referred to in this
prospectus as "Great Plains Energy" or "the Company."
You should rely only on the information contained or
incorporated by reference in this prospectus and any accompanying
prospectus supplement. We have not authorized anyone else to provide
you with any different information. If anyone provides you with
different or inconsistent information, you should not rely on it. We
are not making an offer to sell securities in any jurisdiction where
the offer or sale is not permitted. The information contained in this
prospectus is current only as of the date of this prospectus.
2
CAUTIONARY STATEMENTS REGARDING CERTAIN FORWARD-LOOKING INFORMATION
Statements made in this report that are not based on historical facts
are forward-looking, may involve risks and uncertainties, and are
intended to be as of the date when made. In connection with the safe
harbor provisions of the Private Securities Litigation Reform Act of
1995, the registrants are providing a number of important factors that
could cause actual results to differ materially from provided forward-
looking information. These important factors include:
* future economic conditions in the regional, national and
international markets
* state, federal and foreign regulation
* weather conditions including weather-related damage
* cost of fuel
* financial market conditions including, but not limited to,
changes in interest rates
* inflation rates
* increased competition including, but not limited to, the
deregulation of the electric utility industry and the
entry of new competitors
* ability to carry out marketing and sales plans
* ability to achieve generation planning goals and the
occurrence of unplanned generation outages
* nuclear operations
* ability to enter new markets successfully and capitalize on
growth opportunities in nonregulated businesses
* adverse changes in applicable laws, regulations or rules
governing environmental regulations (including air quality),
tax or accounting matters
* delays in the anticipated in-service dates of additional
generating capacity
* performance of projects undertaken by our non-regulated
businesses and the success of efforts to invest in and
develop new opportunities
* non-performance of counterparties
* availability and cost of capital and
* other risks and uncertainties.
This list of factors is not all-inclusive because it is not possible
to predict all possible factors.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, and proxy
statements and other information with the Securities and Exchange
Commission (the "SEC") through the SEC's Electronic Data Gathering,
Analysis and Retrieval system and these filings are publicly available
through the SEC's website (http://www.sec.gov). You may read and copy
such material at the public reference facilities maintained by the SEC
at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549.
You may obtain information on the operation of the Public Reference
Room by calling the SEC at 1-800-SEC-0330. You may also obtain copies
of such material at prescribed rates from the Public Reference Section
of the SEC, 450 Fifth Street, N.W., Washington, D.C. 20549.
The SEC allows us to "incorporate by reference" into this
prospectus the information we file with them. This means that we can
disclose important information to you by referring you to the
documents containing the information. The information we incorporate
by reference is considered to be included in and an important part of
this prospectus and should be read with the same care. Information
that we file later with the SEC that is incorporated by
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reference into this prospectus will automatically update and supercede
this information. We are incorporating by reference into this
prospectus the following documents that we have filed with the SEC and
any subsequent filings we make with the SEC under Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until the
offering of the securities described in this prospectus is completed:
* Our Annual Report on Form 10-K for the year ended December
31, 2001 (the "2001 Form 10-K")
* Our Report on Form 8-K/A dated February 8, 2002
* Our Report on Form 8-K dated April 24, 2002
This prospectus is part of a registration statement we have
filed with the SEC relating to our securities. As permitted by the
SEC's rules, this prospectus does not contain all of the information
included in the registration statement and the accompanying exhibits
and schedules we file with the SEC. You should read the registration
statement and the exhibits and schedules for more information about us
and our securities. The registration statement, exhibits and
schedules are also available at the SEC's Public Reference Section or
through its website.
You may obtain a free copy of our filings with the SEC by
writing or telephoning us at the following address: Great Plains
Energy Incorporated, 1201 Walnut, Kansas City, Missouri 64106-2124
(Telephone No.: 816-556-2200) Attention: Senior Vice President -
Corporate Services and Secretary, or by contacting us on our website
(www.kcpl.com).
GREAT PLAINS ENERGY INCORPORATED
On October 1, 2001, Great Plains Energy Incorporated, a
Missouri corporation incorporated in 2001, became the parent company
and sole owner of all the common stock of Kansas City Power & Light
Company ("KCP&L"), a public utility subsidiary. As a result of this
ownership, Great Plains Energy is considered a utility holding company
registered with and subject to the regulation of the SEC under the
Public Utility Holding Company Act of 1935, as amended ("PUHCA").
Great Plains Energy does not own or operate any significant assets
other than the stock of its subsidiaries. Other wholly-owned
subsidiaries in addition to KCP&L are KLT Inc. and Great Plains Power
Incorporated ("GPP").
KCP&L, incorporated in Missouri in 1922, engages in the
generation, transmission, distribution and sale of electricity.
KCP&L, headquartered in downtown Kansas City, Missouri, has
approximately 474,000 customers located in all or portions of 23
counties in western Missouri and eastern Kansas. KCP&L contributed
approximately 66% of the Company's revenue in 2001. About 58% of
KCP&L's retail revenues in 2001 were from Missouri customers and the
remainder from Kansas customers. Customers included approximately
419,000 residences, 53,000 commercial firms, and 2,000 industrials,
municipalities and other electric utilities. Retail electric revenues
accounted for approximately 90% of KCP&L's total electric revenues in
2001. Wholesale firm power, bulk power sales and miscellaneous
electric revenues accounted for the remainder of utility revenues.
KLT Inc., formed in 1992, is an investment company that
holds interests in three primary unregulated energy-related
businesses: KLT Energy Services Inc., KLT Gas Inc., and KLT Telecom
Inc. KLT Inc. was transferred to Great Plains Energy by KCP&L in
connection with the corporate reorganization on October 1, 2001. KLT
Inc. contributed approximately 29% of Great Plains Energy's revenues
in 2001.
4
On December 31, 2001, a subsidiary of KLT Telecom, DTI Holdings,
Inc. ("Holdings") and its subsidiary Digital Teleport Inc.
(collectively called "DTI") filed voluntary petitions in Bankruptcy
Court for the Eastern District of Missouri for reorganization under
Chapter 11 of the U.S. Bankruptcy Code. The filings enable DTI to
continue to conduct its business operations while restructuring its
financial obligations. DTI is a telecommunications company
headquartered in St. Louis that focuses on providing access and
connectivity to secondary and tertiary markets. KLT Telecom has
agreed to provide up to $5 million in Debtor-in-Possession ("DIP")
financing to Digital Teleport Inc. during the bankruptcy process if it
achieves certain financial goals. If KLT Telecom provides loans under
this DIP financing agreement, it will have priority repayment over
most other DTI obligations.
GPP, formed in 2001, is focusing on the development,
production and trading of wholesale electric capacity and energy. GPP
has made no investments to date.
USE OF PROCEEDS
Unless we inform you otherwise in a supplement to this
prospectus, we anticipate using any net proceeds received by us from
the sale of the offered securities for general corporate purposes,
including, among others:
* repayment of short term debt,
* repurchase, retirement or refinancing of other securities,
* acquisitions, and
* investments in subsidiaries.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratio of earnings to
fixed charges for the periods indicated:
Year Ended December 31,
------------------------------------
2001 2000 1999 1998 1997
---- ---- ------ ---- ----
(a) 3.02 2.38 2.98 2.05
(a) An $80.0 million deficiency in earnings (as defined below)
caused the ratio of earnings to fixed charges to be less than a one-
to-one coverage. A $195.8 million net write-off before income taxes
related to the bankruptcy filing of DTI was recorded in 2001.
For purposes of computing the ratio of earnings to fixed charges,
"earnings" consists of net income before extraordinary item,
cumulative effect of changes in accounting principles, losses from
equity investments and minority interest in consolidated
subsidiaries with fixed charges plus interest charges (excluding
the reduction for capitalized interest), income taxes, and the
estimated interest components of rents. "Fixed charges" consist of
interest charges (excluding the reduction for capitalized interest)
and the estimated interest components of rents.
DESCRIPTION OF DEBT SECURITIES
GENERAL. The senior debt securities and the subordinated
debt securities, which we refer to collectively as the debt
securities, will represent unsecured obligations of the
5
Company. We may issue one or more series of debt securities directly
to the public, to a trust or as part of a stock purchase unit from
time to time. We expect that each series of senior debt securities or
subordinated debt securities will be issued as a new series of debt
securities under one of two separate indentures, as each may be
amended or supplemented from time to time. We will issue the senior
debt securities in one or more series under a senior indenture that we
will enter into with The Bank of New York, as trustee. We will issue
the subordinated debt securities in one or more series under a
subordinated indenture between a trustee and us. The form of the
senior indenture, the form of the subordinated indenture and the form
of supplemental indenture or other instrument establishing the debt
securities of a particular series are filed as exhibits to, or will be
subsequently incorporated by reference in, the registration statement
of which this prospectus is a part. Each indenture will be qualified
under the Trust Indenture Act of 1939. The following summaries of
certain provisions of the senior indenture, the subordinated indenture
and the applicable debt securities do not purport to be complete and
are subject to, and qualified in their entirety by, all of the
provisions of the senior indenture or the subordinated indenture, as
the case may be, and the applicable debt securities. We may also sell
hybrid or novel securities now existing or developed in the future
that combine certain features of the debt securities and other
securities described in this prospectus. We may be required to obtain
the approval of the SEC under the Public Utility Holding Company Act
of 1935 before we can issue and sell certain of these securities.
We may authorize the issuance and provide for the terms of a
series of debt securities by or pursuant to a resolution of our Board
of Directors or any duly authorized committee thereof or pursuant to a
supplemental indenture or to a company order, as described in the
indentures. There will be no requirement under either the senior
indenture or the subordinated indenture that our future issuances of
debt securities be issued exclusively under either indenture. We will
be free to employ other indentures or documentation containing
provisions different from those included in either indenture or
applicable to one or more issuances of senior debt securities or
subordinated debt securities, as the case may be, in connection with
future issuances of other debt securities. The senior indenture and
the subordinated indenture will provide that the applicable debt
securities will be issued in one or more series, may be issued at
various times, may have differing maturity dates and may bear interest
at differing rates. We need not issue all debt securities of one
series at the same time and, unless otherwise provided, we may reopen
a series, without the consent of the holders of the senior debt
securities or the subordinated debt securities of that series, as the
case may be, for issuances of additional senior debt securities or
subordinated debt securities of that series, as applicable. One or
more series of the debt securities may be issued with the same or
various maturities at par, above par or at a discount. Debt
securities bearing no interest or interest at a rate which, at the
time of issuance, is below the market rate ("Original Issue Discount
Securities") will be sold at a discount (which may be substantial)
below their stated principal amount. Federal income tax consequences
and other special considerations applicable to any such Original Issue
Discount Securities will be described in the prospectus supplement
relating thereto. Unless otherwise described in the applicable
prospectus supplement, neither indenture described above will limit
the aggregate amount of debt, including secured debt, we or our
subsidiaries may incur. Both indentures will also permit us to merge
or consolidate or to transfer our assets, subject to certain
conditions (see "Consolidation, Merger and Sale" below).
RANKING. The senior debt securities will be our direct
unsecured general obligations and will rank equally with all of our
other unsecured and unsubordinated debt. As of December 31, 2001, our
aggregate outstanding debt that would have ranked equally with the
senior debt securities was approximately $125 million. In addition,
we have been granted authority by the SEC to issue up to $600 million
of guarantees for the benefit of our non-utility subsidiaries and
expect to have such guarantees outstanding from time to time in
various aggregate amounts. The subordinated debt securities will be
our direct unsecured general
6
obligations and will be junior in right of payment to our Senior
Indebtedness, as described under the heading "-Subordination of
Subordinated Debt Securities."
Great Plains Energy is a holding company that derives
substantially all of its income from its operating subsidiaries. As a
result, our cash flows and consequent ability to service our debt,
including the debt securities, are dependent upon the earnings of our
subsidiaries and distribution of those earnings to us and other
payments or distributions of funds by our subsidiaries to us,
including payments of principal and interest under intercompany
indebtedness. Our operating subsidiaries are separate and distinct
legal entities and will have no obligation, contingent or otherwise,
to pay any dividends or make any other distributions (except for
payments required pursuant to the terms of intercompany indebtedness)
to us or to otherwise pay amounts due with respect to the debt
securities or to make specific funds available for such payments.
Furthermore, except to the extent we have a priority or equal claim
against our subsidiaries as a creditor, the debt securities will be
effectively subordinated to debt at the subsidiary level because, as
the common shareholder of our subsidiaries, we will be subject to the
prior claims of creditors of our subsidiaries. As of December 31,
2001, our subsidiaries had approximately $1.45 billion of aggregate
outstanding debt
PROVISIONS OF A PARTICULAR SERIES. The prospectus
supplement applicable to each issuance of debt securities will
specify, among other things:
* the title and any limitation on aggregate principal amount
of the debt securities;
* the original issue date of the debt securities;
* the date or dates on which the principal of any of the debt
securities is payable;
* the fixed or variable interest rate or rates, or method of
calculation of such rate or rates, for the debt securities,
and the date from which interest will accrue;
* the terms, if any, regarding the optional or mandatory
redemption of any debt securities, including the redemption
date or dates, if any, and the price or prices applicable
to such redemption;
* the denominations in which such debt securities will be
issuable;
* the period or periods within which, the price or prices at
which and the terms and conditions upon which any debt
securities may be repaid, in whole or in part, at the
option of the holder thereof;
* the place or places where the principal of, and premium, if
any, and interest, if any, on the debt securities shall be
payable;
* the obligation, if any, of THE COMPANY to redeem, purchase,
or repay the debt securities pursuant to any sinking fund or
analogous provision or at the option of a holder thereof and
the period or periods within which, the price or prices at
which, and the terms and conditions upon which the debt
securities shall be redeemed, purchased, or repaid pursuant
to such obligation;
7
* whether the debt securities are to be issued in whole or in
part in the form of
* one of more Global Securities and, if so, the identity of
the Depositary for such Global Security or Global Securities
* the place or places where the principal of, and premium, if
any, and interest, if any, shall be payable;
* any addition to the events of default applicable to that
series of debt securities and the covenants for the benefit
of the holders of that series;
* any remarketing features of the debt securities;
* any collateral, security, assurance, or guarantee for the
debt security;
* if other than the principal amount thereof, the portion of
the principal amount of the debt securities payable upon
declaration of acceleration of the maturity of the debt
securities;
* the securities exchange(s), if any, on which the debt
securities will be listed;
* the terms, if any, pursuant to which debt securities may be
converted into or exchanged for shares of our capital stock
or other securities;
* any interest deferral or extension provisions;
* the applicability of or any change in the subordination
provisions for a series of debt securities;
* the terms of any warrants we may issue to purchase debt
securities; and
* any other terms of the debt securities not inconsistent with
the provisions of the applicable indenture.
SUBORDINATION. The subordinated debt securities will be
subordinate and junior in right of payment to all of our Senior
Indebtedness, as defined below.
No payment of principal of (including redemption and sinking
fund payments), premium, if any, or interest on, the subordinated debt
securities may be made if any Senior Indebtedness is not paid when
due, any applicable grace period with respect to such default has
ended and such default has not been cured or waived, or the maturity
of any Senior Indebtedness has been accelerated because of a default
and such acceleration has not been rescinded or annulled.
Upon any distribution of our assets to creditors upon any
dissolution, winding-up, liquidation or reorganization, whether
voluntary or involuntary, or in bankruptcy, insolvency, receivership
or other proceedings, all principal of, and premium, if any, and
interest due or to become due on, all Senior Indebtedness must be paid
in full before the holders of the subordinated debt securities are
entitled to receive or retain any payment. The rights of the holders
of the subordinated debt securities will be subrogated to the rights
of the holders of Senior Indebtedness to receive payments or
distributions applicable to Senior Indebtedness until all amounts
owing on the subordinated debt securities are paid in full. If
provided in the applicable prospectus supplement, limited
subordination periods may apply in the event of non-
8
payment defaults relating to Senior Indebtedness in situations where
there has not been an acceleration of Senior Indebtedness.
As defined in the subordinated indenture, the term "Senior
Indebtedness" means:
(1) obligations (other than non-recourse obligations, the
indebtedness issued under the subordinated indenture and
other indebtedness which is either effectively by its terms
or expressly made subordinate to or PARI PASSU with the
subordinated debt securities) of, or guaranteed (except to
the extent our payment obligations under any such guarantee
are subordinate to or PARI PASSU with the subordinated debt
securities) or assumed by, us for
* borrowed money (including both senior and subordinated
indebtedness for borrowed money (other than the
subordinated debt securities)); or
* the payment of money relating to any lease which is
capitalized on our balance sheet in accordance with
generally accepted accounting principles as in effect
from time to time; or
(2) indebtedness evidenced by bonds, debentures, notes or
other similar instruments, and
in each case, amendments, renewals, extensions,
modifications and refundings of any such indebtedness or
obligations with Senior Indebtedness, whether existing as of
the date of the subordinated indenture or subsequently
incurred by us.
The subordinated indenture will not limit the aggregate
amount of Senior Indebtedness that we may issue. As of December 31,
2001, our outstanding Senior Indebtedness totaled approximately
$125 million.
REGISTRATION, TRANSFER AND EXCHANGE. Unless otherwise
indicated in the applicable prospectus supplement, each series of debt
securities, other than debt securities issued to a trust, will
initially be issued in the form of one or more global securities, in
registered form, without coupons, as described under "Book-Entry
System." The global securities will be registered in the name a
depository, or its nominee, and deposited with, or on behalf of, the
depository. Except in the circumstances described under "Book-Entry
System," owners of beneficial interests in a global security will not
be entitled to have debt securities registered in their names, will
not receive or be entitled to receive physical delivery of any debt
securities and will not be considered the registered holders thereof
under the applicable indenture.
Debt securities of any series will be exchangeable for other
debt securities of the same series of any authorized denominations and
of a like aggregate principal amount and tenor. Subject to the terms
of the applicable indenture and the limitations applicable to global
securities, debt securities may be presented for exchange or
registration of transfer-duly endorsed or accompanied by a duly
executed instrument of transfer-at the office of any transfer agent we
may designate for such purpose, without service charge but upon
payment of any taxes and other governmental charges, and upon
satisfaction of such other reasonable requirements as are described in
the applicable indenture.
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Unless otherwise indicated in the applicable prospectus
supplement, the transfer agent will be the trustee under the
applicable indenture. We may at any time designate additional transfer
agents or rescind the designation of any transfer agent or approve a
change in the office through which any transfer agent acts, except
that we will be required to maintain a transfer agent in each place of
payment for the debt securities of each series.
PAYMENT AND PAYING AGENTS. Principal of and interest and
premium, if any, on debt securities issued in the form of global
securities will be paid in the manner described under "Book-Entry
System."
Unless otherwise indicated in the applicable prospectus
supplement, the principal of and any premium and interest on debt
securities of a particular series in the form of certificated
securities will be payable at the office of the applicable trustee or
at the authorized office of any paying agent or paying agents upon
presentation and surrender of such debt securities. We 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 we will be required to maintain a
paying agent in each place of payment for the debt securities of a
particular series. Unless otherwise indicated in the applicable
prospectus supplement, interest on the debt securities of a particular
series, other than interest at maturity, that are in the form of
certificated securities will be paid by check payable in clearinghouse
funds mailed to the person entitled thereto at such person's address
as it appears on the register for such debt securities maintained by
the applicable trustee. All monies we pay to a trustee or a paying
agent for the payment of the principal of, and premium or interest, if
any, on, any debt security which remain unclaimed at the end of two
years after such principal, premium or interest shall have become due
and payable will be repaid to us, and the holder of such debt security
thereafter may look only to us for payment thereof. However, any such
payment shall be subject to escheat pursuant to state abandoned
property laws.
REDEMPTION. Any terms for the optional or mandatory
redemption of the debt securities will be set forth in the applicable
prospectus supplement. Unless otherwise indicated in the applicable
prospectus supplement, debt securities will be redeemable by us only
upon notice by mail not less than 30 nor more than 60 days prior to
the date fixed for redemption, and, if less than all the debt
securities of a series are to be redeemed, the particular debt
securities to be redeemed will be selected by such method as shall be
provided for any particular series, or in the absence of any such
provision, by the trustee in such manner as it shall deem fair and
appropriate.
Any notice of redemption at our option may state that such
redemption will be conditional upon receipt by the trustee or the
paying agent or agents, on or prior to the dated fixed for such
redemption, of money sufficient to pay the principal of and premium,
if any, and interest on, such debt securities and that if such money
has not been so received, such notice will be of no force and effect
and we will not be required to redeem such debt securities.
CONSOLIDATION, MERGER AND SALE OR DISPOSITION OF ASSETS. We
may , without the consent of the holders of any debt securities,
consolidate with or merge into any other corporation or sell or
otherwise dispose of our properties as or substantially as an entirety
to any person, provided that:
* the successor or transferee corporation or the person which
receives such properties pursuant to such sale, transfer or
other disposition is a
10
corporation organized and existing under the laws of the
United States of America, any state thereof or the
District of Columbia;
* the successor or transferee corporation or the person which
receives such properties pursuant to such sale, transfer or
other disposition assumes by supplemental indenture the due
and punctual payment of the principal of and premium and
interest, if any, on all the debt securities outstanding
under each indenture and the performance of every covenant
of each indenture to be performed or observed by us;
* we have delivered to the trustees for such debt securities
an officer's certificate and an opinion of counsel as will
be provided in each of the indentures; and
* immediately after giving effect to the transaction, no Event
of Default (see "Events of Default") or event that, after
notice or lapse of time, or both, would become an Event of
Default, shall have occurred and be continuing.
Upon any such consolidation, merger, sale, transfer or other
disposition of our properties (except transfers related to a lease of
our properties) as or substantially as an entirety, the successor
corporation formed by such consolidation or into which we are merged
or the person to which such sale, transfer or other disposition is
made shall succeed to, and be substituted for, and may exercise every
right and power of, us under the applicable indenture with the same
effect as if such successor corporation or person had been named as us
therein, and we will be released from all obligations under the
applicable indenture.
Certain of the indentures for debt securities issued or to
be issued by KCP&L provide that the sale, conveyance or other transfer
by KCP&L of its facilities for the generation of electric energy to
any affiliate of KCP&L, shall not be subject to other restrictions on
sales, conveyances, or other transfers provided that the facilities
shall not in the aggregate represent assets with a depreciated value
on the books of KCP&L in excess of 65% of the depreciated value of
KCP&L's total assets as set forth in its most recent report filed on
Form 10-K or 10-Q as of the date of the sale, conveyance, or other
transfer.
MODIFICATION. Without the consent of any holder of debt
securities, the trustee for such debt securities and we may enter into
one or more supplemental indentures for any of the following purposes:
* to supply omissions, cure any ambiguity or inconsistency or
correct defects, which actions, in each case, are not
prejudicial to the interests of the holders of debt
securities of any series in any material respect;
* to change or eliminate any provision of the applicable
indenture, provided that any such change or elimination
will become effective with respect to such series only when
there is no debt security of such series outstanding created
prior to the execution of such supplemental indenture which
is entitled to the benefit of such provision, or such change
or elimination is applicable only to debt securities of
such series issued after the effective date of such
change or elimination;
* to establish the form or terms of debt securities of any
series as permitted by the applicable indenture;
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* to evidence the assumption of our covenants in the
applicable indenture and the debt securities by any permitted
successor;
* to grant to or confer upon the trustee for any debt
securities for the benefit of the holders of such debt
securities, any additional rights, remedies, powers or
authority;
* to permit the trustee for any debt securities to comply with
any duties imposed upon it by law;
* to specify further the duties and responsibilities of, and
to define further the relationship among, the trustee for
any debt securities, any authenticating agent and any paying
agent, and to evidence the succession of a successor trustee
as permitted under the applicable indenture;
* to add to our covenants for the benefit of the holders of
all or any series of outstanding debt securities, to add to
the security of all debt securities, to surrender any right
or power conferred upon us by the applicable indenture or to
add any additional events of default with respect to all or
any series of outstanding debt securities; and
* to make any other change that is not prejudicial to the
holders of any debt securities.
Except as provided above, the consent of the holders of a
majority in aggregate principal amount of either the senior debt
securities or the subordinated debt securities, as the case may be, of
all series then outstanding, considered as one class, is required for
the purpose of adding any provisions to, or changing in any manner, or
eliminating any of the provisions of, the applicable indenture
pursuant to one or more supplemental indentures or of modifying or
waiving in any manner the rights of the holders of the applicable debt
securities; provided, however, that if less than all of the series of
senior debt securities or subordinated debt securities outstanding, as
the case may be, are directly affected by a proposed supplemental
indenture, then the consent only of the holders of a majority in
aggregate principal amount of the outstanding applicable debt
securities of all series so directly affected, considered as one
class, will be required.
Notwithstanding the foregoing, no such amendment or
modification may, without the consent of each holder of outstanding
debt securities affected thereby:
* change the maturity date of the principal of any
debt security;
* reduce the principal amount of, or premium payable on,
any debt security;
* reduce the rate of interest or change the method of
calculating such rate, or extend the time of payment of
interest, on any debt security;
* change the coin or currency of any payment of principal
of, or any premium or interest on any debt security;
* change the date on which any debt security may be
redeemed or adversely affect the rights of a holder to
institute suit for the enforcement of any payment of
principal of or any premium or interest on any debt
security; or
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* modify the foregoing requirements or reduce the
percentage of outstanding debt securities necessary to
modify or amend the applicable indenture or to waive any
past default.
A supplemental indenture which changes or eliminates any
covenant or other provision of the applicable indenture which has
expressly been included solely for the benefit of one or more series
of debt securities, or which modifies the rights of the holders of
debt securities of such series with respect to such covenant or
provision, will be deemed not to affect the rights under the
applicable indenture of the holders of the debt securities of any
other series.
EVENTS OF DEFAULT. Unless specifically deleted in a
supplemental indenture or Board resolution under which a series of
debt securities is issued, or modified in any such supplemental
indenture, each of the following will constitute an event of default
under the senior indenture or the subordinated indenture with respect
to senior debt securities or subordinated debt securities, as the case
may be, of any series:
* failure to pay principal of or premium, if any, on any
debt security of such series, as the case may be,
within one day after the same becomes due and payable;
* failure to pay interest on the debt securities of such
series within 30 days after the same becomes due and
payable;
* failure to perform or breach of any of our other
covenants or warranties in the applicable indenture
(other than a covenant or warranty solely for the
benefit of one or more series of debt securities other
than such series) for 60 days after written notice to
us by the trustee or to us and the trustee by the
holders of at least 33% in aggregate principal amount
of the outstanding applicable debt securities of such
series;
* certain events of bankruptcy, insolvency,
reorganization, assignment or receivership; or
* any other event of default specified in the applicable
prospectus supplement with respect to debt securities
of a particular series.
No event of default with respect to the debt securities of a
particular series necessarily constitutes an event of default with
respect to the debt securities of any other series issued under the
applicable indenture.
If an event of default with respect to any series of debt
securities occurs and is continuing, then either the trustee for such
series or the holders of a majority in aggregate principal amount of
the outstanding debt securities of such series, by notice in writing,
may declare the principal amount of and interest on all of the debt
securities of such series to be due and payable immediately; provided,
however, that if an event of default occurs and is continuing with
respect to more than one series of debt securities under a particular
indenture, the trustee for such series or the holders of a majority in
aggregate principal amount of the outstanding debt securities of all
such series, considered as one class, may make such declaration of
acceleration and not the holders of the debt securities of any one of
such series.
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At any time after an acceleration with respect to the debt
securities of any series has been declared, but before a judgment or
decree for the payment of the money due has been obtained, the event
or events of default giving rise to such acceleration will be waived,
and the acceleration will be rescinded and annulled, if
* we pay or deposit with the trustee for such series a sum
sufficient to pay all matured installments of interest on
all debt securities of such series, the principal of and
premium, if any, on the debt securities of such series
which have become due otherwise than by acceleration and
interest thereon at the rate or rates specified in such
debt securities, interest upon overdue installments of
interest at the rate or rates specified in such debt
securities, to the extent that payment of such interest is
lawful, and all amounts due to the trustee for such series
under the applicable indenture; and
* any other event or events of default with respect to the
debt securities of such series, other than the nonpayment of
the principal of and accrued interest on the debt securities
of such series which has become due solely by such
acceleration, have been cured or waived as provided in the
applicable indenture.
However, no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default or impair any related right.
Subject to the provisions of the applicable indenture
relating to the duties of the trustee in case an event of default
shall occur and be continuing, the trustee generally will be under no
obligation to exercise any of its rights or powers under the
applicable indenture at the request or direction of any of the holders
unless such holders have offered to the trustee reasonable security or
indemnity satisfactory to it. Subject to such provisions for the
indemnification of the trustee and certain other limitations contained
in the applicable indenture, the holders of a majority in aggregate
principal amount of the outstanding debt securities of any series
will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the trustee,
or of exercising any trust or power conferred on the trustee, with
respect to the debt securities of that series; provided, however,
that if an event of default occurs and is continuing with respect
to more than one series of debt securities, the holders of a
majority in aggregate principal amount of the outstanding debt
securities of all those series, considered as one class, will have
the right to make such direction, and not the holders of the debt
securities of any one series. Any direction provided by the holders
shall not be in conflict with any rule of law or with the senior
indenture or the subordinated indenture, as the case may be, and
will not involve the trustee in personal liability in circumstances
where reasonable indemnity would not, in the trustee's sole
discretion, be adequate and the trustee may take any other action
it deems proper that is not inconsistent with such direction.
The holders of a majority in aggregate principal amount of
the outstanding debt securities of any series may waive any past
default under the applicable indenture on behalf of all holders of
debt securities of that series with respect to the debt securities of
that series, except a default in the payment of principal of or any
premium or interest on such debt securities. No holder of debt
securities of any series may institute any proceeding with respect to
the applicable indenture, or for the appointment of a receiver or a
trustee, or for any other remedy, unless such holder has previously
given to the trustee for such series written notice of a continuing
event of default with respect to the debt securities of such series,
the holders of a majority in aggregate principal amount of the
outstanding debt securities of all series in respect of which an event
of default has occurred and is continuing, considered as one class,
have made written request to the trustee for such series to institute
such proceeding and have
14
offered reasonable indemnity, and the trustee for such series has
failed to institute such proceeding within 60 days after such notice,
request and offer. Furthermore, no holder of debt securities of
any series will be entitled to institute any such action if and
to the extent that such action would disturb or prejudice the rights
of other holders of those debt securities.
Notwithstanding the foregoing, each holder of debt
securities of any series has the right, which is absolute and
unconditional, to receive payment of the principal of and premium and
interest, if any, on such debt securities when due and to institute
suit for the enforcement of any such payment, and such rights may not
be impaired without the consent of that holder of debt securities.
The trustee, within 90 days after it receives notice of the
occurrence of a default with respect to the debt securities of any
series, is required to give the holders of the debt securities of that
series notice of such default, unless cured or waived, but, except in
the case of default in the payment of principal of, or premium, if
any, or interest on, the debt securities of that series, the trustee
may withhold such notice if it determines in good faith that it is in
the interest of such holders to do so. We will be required to deliver
to the trustees for the debt securities each year a certificate as to
whether or not, to the knowledge of the officers signing such
certificate, we are in compliance with all conditions and covenants
under the applicable indenture, determined without regard to any
period of grace or requirement of notice under such indenture.
DEFEASANCE AND DISCHARGE. Unless the applicable prospectus
supplement states otherwise, we may elect either:
1. to defease and be discharged from any and all obligations in
respect of the debt securities of any series then outstanding
under the applicable indenture (except for certain obligations
to register the transfer or exchange of the debt securities of
such series, replace stolen, lost or mutilated notes, maintain
paying agencies and hold monies for payment in trust); or
2. to be released from the obligations of the senior indenture
with respect to the senior debt securities of any series or the
subordinated indenture with respect to the subordinated debt
securities of any series under any covenants applicable to the
debt securities of such series which are subject to covenant
defeasance as described in the supplemental indenture or other
instrument establishing such series.
In the case of either (1) or (2), we are required to
deposit, in trust, with the applicable trustee money or U.S.
government obligations, which through the payment of interest on those
obligations and principal of those obligations in accordance with
their terms will provide money, in an amount sufficient, without
reinvestment, to pay all the principal of, premium, if any, and
interest on the debt securities of such series on the dates payments
are due (which may include one or more redemption dates designated by
us). This trust may only be established if, among other things, (A) no
event of default or event which with the giving of notice or lapse of
time, or both, would become an event of default under the applicable
indenture has occurred and is continuing on the date of the deposit,
(B) the deposit will not cause the trustee to have any conflicting
interest with respect to our other securities and (C) we have
delivered an opinion of counsel to the effect that the holders will
not recognize income, gain or loss for federal income tax purposes
(and, in the case of paragraph (1) above, such opinion of counsel is
based on a ruling of the Internal Revenue Service or other change in
applicable federal income tax law) as a result of the deposit or
defeasance and will be subject
15
to federal income tax in the same amounts, in the same manner and
at the same times as if the deposit and defeasance had not occurred.
We may exercise our defeasance option under paragraph (1)
with respect to debt securities of any series notwithstanding our
prior exercise of our covenant defeasance option under paragraph (2).
If we exercise our defeasance option for debt securities of any
series, payment of the debt securities of such series may not be
accelerated because of a subsequent event of default. If we exercise
our covenant defeasance option for debt securities of any series,
payment of the debt securities of such series may not be accelerated
by reference to a subsequent breach of any of the covenants noted
under clause (2) in the preceding paragraph. In the event we fail to
comply with our remaining obligations with respect to the debt
securities of any series under the applicable indenture after
exercising our covenant defeasance option and the debt securities of
such series are declared due and payable because of the subsequent
occurrence of any event of default, the amount of money and U.S.
government obligations on deposit with the trustee may be insufficient
to pay amounts due on the debt securities of such series at the time
of the acceleration resulting from that event of default. However, we
will remain liable for those payments.
RESIGNATION OR REMOVAL OF TRUSTEE. The trustee may resign
at any time upon written notice to us specifying the day upon which
the resignation is to take effect and such resignation will take
effect immediately upon the later of the appointment of a successor
trustee and such specified day. The trustee may be removed at any time
with respect to debt securities of any series by an instrument or
concurrent instruments in writing filed with the trustee and signed by
the holders, or their attorneys-in-fact, of a majority in aggregate
principal amount of that series of debt securities then outstanding.
In addition, so long as no event of default or event which, with the
giving of notice or lapse of time or both, would become an event of
default has occurred and is continuing, we may remove the trustee upon
notice to the holder of each debt security outstanding and the
trustee, and appointment of a successor trustee.
CONCERNING THE TRUSTEE FOR SENIOR DEBT SECURITIES. As of
December 31, 2001, The Bank of New York, which will be the trustee
under the senior indenture, was the trustee for $1,117.9 million of
KCP&L's secured and unsecured debt under eight separate indentures
executed between 1992 and 2002. The Bank of New York is also a
depository for funds and performs other services for, and transacts
other banking business with our affiliates and us in the normal course
and may do so in the future. Each indenture will provide that our
obligations to compensate the trustee and reimburse the trustee for
expenses, disbursements and advances will be secured by a lien prior
to that of the applicable debt securities upon the property and funds
held or collected by the trustee as such.
GOVERNING LAW. The senior indenture, the subordinated
indenture and the related debt securities will be governed by New York
law.
DESCRIPTION OF TRUST PREFERRED SECURITIES
This prospectus describes certain general terms of the trust
preferred securities. The trust preferred securities will be issued by
one or more statutory business trusts which we will form under
Delaware law prior to such issuance. At that time, we intend to amend
the registration statement of which this prospectus is a part to
include each trust issuer as a registrant for purposes of issuing and
selling trust preferred securities of that trust. At the time trust
preferred securities are to be issued, the original trust agreement
will be amended and restated, to be effective at the time of such
issuance. The form of amended and restated trust agreement is filed as
an exhibit to the registration statement of which this prospectus is a
part. The amended and restated trust agreement, which we will refer to
in this prospectus as the
16
"trust agreement," for each trust will be qualified as an indenture
under the Trust Indenture Act of 1939. You should read the form
of amended and restated trust agreement for provisions that may
be important to you. When we offer to sell a particular series of
trust preferred securities, we will describe the specific terms
of that series in a prospectus supplement. The trust preferred
securities will be issued pursuant to the related trust agreements,
which we have summarized below. This summary is not complete.
GENERAL. Each trust will exist for the exclusive purposes
of:
* issuing two classes of trust securities-trust preferred
securities and trust common securities (collectively, the
"trust securities")-which together represent undivided
beneficial interests in the assets of the trust;
* investing the gross proceeds of the trust securities in our
debt securities;
* making distributions; and
* engaging in only those other activities necessary, advisable
or incidental to the purposes listed above.
Our debt securities will be the sole assets of each trust,
and our payments under the debt securities will be the sole revenue of
each trust. No separate financial statements of any trust will be
included in this prospectus. We consider that these financial
statements would not be material to holders of the trust preferred
securities because no trust would have any independent operations and
the only purposes of each trust are those described above. We do not
expect that any trust will be filing annual, quarterly or special
reports with the SEC. The principal place of business of each trust
will be c/o Great Plains Energy Incorporated, 1201 Walnut, Kansas
City, Missouri 64106.
Each trust will exist until terminated as provided in its
trust agreement. The administrators and trustees of each trust will
be:
* two of our employees or officers or two employees or
officers of our affiliates as administrators (the
"administrators");
* a financial institution that will act as property trustee
and as indenture trustee for purposes of the Trust Indenture
Act (the "property trustee"); and
* one trustee with its principal place of business in the
State of Delaware for the purpose of complying with the
provisions of the Delaware Business Trust Act (the
"Delaware trustee").
The trust agreement will authorize the administrators to
issue two classes of trust securities: trust preferred securities and
trust common securities. We will own all of the trust common
securities issued by each trust, which will rank equally in right of
payment with the trust preferred securities issued by the respective
trust. However, if an event of default occurs and is continuing under
the trust agreement, rights of the holders of the trust common
securities to payment for distributions and otherwise will be
subordinated to the rights of the holders of the trust preferred
securities. We will acquire trust common securities of each trust in a
total liquidation amount of a to-be determined percentage of the total
capital of the trust.
Proceeds from the sale of both the trust preferred
securities and the trust common securities issued by each trust will
be used to purchase our debt securities, which will
17
be held in trust by the property trustee for the benefit of the
holders of the trust securities issued by the respective trust.
We will guarantee the payments of distributions and payments of
redemption or liquidation with respect to the trust preferred
securities issued by each trust, but only to the extent the
respective trust has funds legally available for and cash sufficient
to make those payments and has not made the payments. See
"Description of Guarantees" below.
Each guarantee, when taken together with our obligations
under the related debt securities, the related indenture and the
related trust agreement, will provide a full and unconditional
guarantee of amounts due on the trust preferred securities issued by
the respective trust. The trust preferred securities will have the
terms, including distributions, redemption, voting, liquidation rights
and other rights or restrictions that will be described in the related
trust agreement or made part of it by the Trust Indenture Act or the
Delaware Business Trust Act.
PROVISIONS OF A PARTICULAR SERIES. Each trust may issue
only one series of trust preferred securities. The applicable
prospectus supplement will set forth the principal terms of the trust
preferred securities that will be offered, including:
* the name of the trust preferred securities;
* the liquidation amount and number of trust preferred
securities issued;
* the annual distribution rate or rates or method of
determining such rate or rates, the payment date or
dates and the record dates used to determine the
holders who are to receive distributions;
* the date from which distributions will be cumulative;
* the optional redemption provisions, if any, including
the prices, time periods and other terms and conditions
on which the trust preferred securities will be
purchased or redeemed, in whole or in part;
* the terms and conditions, if any, upon which the debt
securities and the related guarantee may be distributed
to holders of the trust preferred securities;
* any securities exchange on which the trust preferred
securities will be listed;
* the terms and conditions, if any, upon which the trust
preferred securities may be converted into our
securities; and
* any other relevant rights, covenants, preferences,
privileges, limitations or restrictions of the trust
preferred securities.
Terms of the trust preferred securities issued by each trust
will mirror the terms of the debt securities held by the respective
trust. In other words, the interest rate and interest and other
payment dates of each series of debt securities issued to a trust will
correspond to the rate at which distributions will be paid and the
distribution and other payment dates of the trust preferred securities
of that trust. The prospectus supplement will also set forth whether
the debt securities to be issued to a trust will be senior debt
securities or subordinated debt securities.
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DISTRIBUTIONS. The trust preferred securities represent
preferred, undivided, beneficial interests in the assets of the
respective trust. The applicable prospectus supplement will state the
annual rate, as a percentage of the liquidation amount, at which
distributions on each trust preferred security will be payable, the
liquidation amount and the dates on which distributions will be
payable.
Each trust will use the proceeds from the issuance and sale
of the trust preferred securities to purchase debt securities. The
income of a trust available for distribution to holders of the trust
preferred securities issued by that trust will be limited to payments
under those debt securities. If we do not make payments on the debt
securities, a trust will not have funds available to pay distributions
or other amounts payable on the trust preferred securities issued by
that trust. The payment of distributions and other amounts payable on
the trust preferred securities issued by a trust, if and to the extent
the trust has funds legally available for and cash sufficient to make
such payments, is guaranteed by us as described herein.
OPTION TO EXTEND INTEREST PAYMENT PERIOD. If the applicable
prospectus supplement so states , we will have the right to defer the
payment of interest on the debt securities at any time or from time to
time for a period, which we refer to in this prospectus as an
"extension period," not exceeding 20 consecutive quarterly periods
with respect to each extension period. During each extension period we
shall have the right to make partial payments of interest on any
interest payment date. At the end of each extension period we shall
pay all interest then accrued and unpaid. No extension period may
extend beyond the stated maturity of the debt securities or end on a
date other than an interest payment date. As a consequence of any such
deferral, distributions on the trust preferred securities by a trust
will be deferred during any such extension period. Distributions to
which holders of the trust preferred securities are entitled will
accumulate additional distributions at the rate stated in the
applicable prospectus supplement. During an extension period, interest
will continue to accrue and holders of debt securities, or holders of
trust preferred securities while outstanding, will be required to
accrue original issue discount income for United States federal income
tax purposes.
Prior to the termination of any extension period, we may
further defer the payment of interest, provided that, unless the
applicable prospectus supplement states otherwise, no extension period
may exceed 20 consecutive quarterly periods or extend beyond the
stated maturity of the debt securities. Upon the termination of any
extension period and the payment of all amounts then due, we may elect
to begin a new extension period subject to the above conditions. No
interest shall be due and payable during an extension period, except
at its end. We must give the trustee notice of our election of an
extension period at least one business day prior to the earlier of the
date the distributions on the trust preferred securities would have
been payable but for the election to begin such extension period and
the date the property trustee is required to give notice to holders of
the trust preferred securities of the record date or the date such
distributions are payable, but in any event not less than one business
day prior to such record date. The trustee will give notice of our
election to begin a new extension period to the holders of the trust
preferred securities.
REGISTRATION, TRANSFER AND EXCHANGE. Unless otherwise
indicated in the applicable prospectus supplement, each series of
trust preferred securities will be issued initially in the form of one
or more global securities, in registered form, without coupons, as
described under "Book-Entry System." The global trust preferred
securities will be registered in the name of a nominee of The
Depository Trust Company, as depository, and deposited with, or on
behalf of, the depository. Except in the circumstances described under
"Book-Entry System," owners of beneficial interests in a global trust
preferred security will not be entitled to have trust preferred
securities registered in their names, will not receive or be entitled
to receive physical
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delivery of any trust preferred securities and will not be
considered the registered holders thereof under the related
trust agreement.
Trust preferred securities of any series will be
exchangeable for other trust preferred securities of the same series
of any authorized denominations of a like aggregate liquidation amount
and tenor. Subject to the terms of the trust agreement and the
limitations applicable to global securities, trust preferred
securities may be presented for exchange or registration of
transfer-duly endorsed or accompanied by a duly executed
instrument of transfer-at the office of the property trustee,
without service charges but upon payment of any taxes and other
governmental charges, and upon satisfaction of such other
reasonable requirements as are described in the trust agreement.
Such transfer or exchange will be effected upon the
property trustee being satisfied with the documents of title and
identity of the person making the request.
The property trustee will not be required to issue, register
the transfer of, or exchange any trust preferred securities during a
period beginning at the opening of business 15 days before the day of
mailing of a notice of redemption of any trust preferred securities
called for redemption and ending at the close of business on the day
of mailing or register the transfer of, or exchange, any trust
preferred securities selected for redemption except, in the case of
any trust preferred security to be redeemed in part, the portion
thereof not to be so redeemed.
PAYMENT AND PAYING AGENTS. Distributions and other
payments on trust preferred securities issued in the form of global
securities will be paid in the manner described under "Book-Entry
System."
Unless otherwise indicated in the applicable prospectus
supplement, distributions and other payments with respect to trust
preferred securities that are in the form of certificated securities
will be made by check mailed to the person entitled thereto at such
person's address as such address appears on the securities register
for the trust securities maintained by the property trustee. The
paying agent initially will be the property trustee and any co-paying
agent chosen by the property trustee and acceptable to the
administrators. If the property trustee is no longer the paying agent,
the property trustee will appoint a successor, which must be a bank or
trust company reasonably acceptable to the administrators, to act as
paying agent. Such paying agent will be permitted to resign as paying
agent upon 30 days' written notice to the property trustee and the
administrators at which time the paying agent will return all
unclaimed funds and all other funds in its possession to the property
trustee.
REDEMPTION. Upon the repayment or redemption, in whole or
in part, of the debt securities held by a trust, the proceeds shall be
applied by the property trustee to redeem a Like Amount, as defined
below, of the trust securities issued by that trust, upon not less
than 30 nor more than 60 days' notice, unless otherwise indicated in a
prospectus supplement, at a redemption price equal to the aggregate
liquidation amount of the trust preferred securities plus accumulated
but unpaid distributions to but excluding the redemption date and the
related amount of the premium, if any, paid by us upon the concurrent
redemption of the debt securities. If less than all the debt
securities held by a trust are to be repaid or redeemed on a
redemption date, then the proceeds from the repayment or redemption
shall be allocated to the redemption proportionately of the trust
preferred securities and the trust common securities issued by that
trust based on the relative liquidation amounts of the classes. The
amount of premium, if any, paid by us upon the redemption of all or
any part of the debt securities held by a trust to be repaid or
redeemed on a redemption date shall be allocated to the redemption
proportionately of the trust preferred securities and the trust common
securities issued by that trust.
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Unless the applicable prospectus supplement states
otherwise, we will have the right to redeem the debt securities held
by a trust:
* on or after the date fixed for redemption as stated in the
applicable prospectus supplement, in whole at any time or in
part from time to time; or
* prior to the date fixed for redemption as stated in the
applicable prospectus supplement, in whole, but not in part,
at any time within 90 days following the occurrence and during
the continuation of a Tax Event or an Investment Company
Event, each as defined below.
"Like Amount" means:
* with respect to a redemption of trust securities, trust
securities having a liquidation amount equal to that portion
of the principal amount of debt securities to be
contemporaneously redeemed in accordance with the applicable
indenture, allocated to the trust common securities and to
the trust preferred securities based upon the relative
liquidation amounts of the classes; and
* with respect to a distribution of debt securities to holders
of trust securities in connection with a dissolution or
liquidation of a trust, debt securities having a principal
amount equal to the liquidation amount of the trust
securities of the holder to whom the
debt securities are distributed.
"Tax Event" means the receipt by a trust of an opinion of
counsel to us experienced in relevant 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 of or
in the United States, or as a result of any official or administrative
pronouncement or action or judicial decision interpreting or applying
these laws or regulations, which amendment or change is effective or
which pronouncement or decision is announced on or after the date of
issuance by a trust of trust preferred securities, including, without
limitation, any of the foregoing arising with respect to, or resulting
from, any proposal, proceeding or other action commencing on or before
the date of issuance, there is more than an insubstantial risk that:
* the trust is, or will be within 90 days of the delivery of
the opinion, subject to United States federal income tax with
respect to income received or accrued on the debt securities
we have issued to that trust;
* interest payable by us on the debt securities is not, or
within 90 days of the delivery of the opinion, will not be,
deductible by us, in whole or in part, for United States
federal income tax purposes; or
* the trust is, or will be within 90 days of the delivery of
the opinion, subject to more than an insubstantial amount of
other taxes, duties or other governmental charges.
"Investment Company Event" means the receipt by a trust of
an opinion of counsel to us experienced in these 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,
21
governmental agency or regulatory authority, 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 issuance by that trust of trust preferred
securities.
If and for so long as a trust is the holder of all the debt
securities issued by us to that trust, we will pay, with respect to
the debt securities, such additional amounts as may be necessary in
order that the amount of distributions then due and payable by a trust
on the outstanding trust preferred securities and trust common
securities of a trust will not be reduced as a result of any
additional taxes, duties and other governmental charges to which that
trust has become subject, including as a result of a Tax Event.
REDEMPTION PROCEDURES. Trust preferred securities of a
trust redeemed on each redemption date shall be redeemed at the
redemption price with the applicable proceeds from the contemporaneous
redemption of the debt securities held by that trust. Redemptions of
trust preferred securities shall be made and the redemption price
shall be payable on each redemption date only to the extent that a
trust has funds on hand available for the payment of the redemption
price. See also "-Subordination of Trust Common Securities."
If a trust gives a notice of redemption in respect of any
trust preferred securities, then, by 12:00 noon, New York City time,
on the redemption date, to the extent funds are available, in the case
of trust preferred securities held in book-entry form, the property
trustee will deposit irrevocably with the depository funds sufficient
to pay the applicable redemption price and will give the depository
irrevocable instructions and authority to pay the redemption price to
the holders of the trust preferred securities. With respect to trust
preferred securities not held in book-entry form, the property
trustee, to the extent funds are available, will irrevocably deposit
with the paying agent for the trust preferred securities funds
sufficient to pay the applicable redemption price and will give the
paying agent irrevocable instructions and authority to pay the
redemption price to the holders upon surrender of their certificates
evidencing the trust preferred securities. Notwithstanding the
foregoing, distributions payable on or prior to the redemption date
for any trust preferred securities called for redemption shall be
payable to the holders of the trust preferred securities on the
relevant record dates for the related distribution dates. If notice of
redemption shall have been given and funds deposited as required, then
upon the date of the deposit all rights of the holders of the trust
preferred securities so called for redemption will cease, except the
right of the holders of the trust preferred securities to receive the
redemption price, and any distribution payable in respect of the trust
preferred securities, but without interest on the redemption price,
and the trust preferred securities will cease to be outstanding. In
the event that payment of the redemption price in respect of trust
preferred securities called for redemption is improperly withheld or
refused and not paid either by a trust or by us pursuant to the
guarantee as described under "Description of Guarantees,"
distributions on the trust preferred securities will continue to
accumulate at the then applicable rate, from the redemption date
originally established by a trust for the trust preferred securities
it issues to the date the redemption price is actually paid, in which
case the actual payment date will be the date fixed for redemption for
purposes of calculating the redemption price.
If less than all the trust preferred securities and trust
common securities are to be redeemed on a redemption date, then the
aggregate liquidation amount of the trust preferred securities and
trust common securities to be redeemed shall be allocated
proportionately to the trust preferred securities and the trust common
securities based upon the relative liquidation amounts of the classes.
The particular trust preferred securities to be redeemed shall be
selected on a proportionate basis not more than 60 days prior to the
22
redemption date by the property trustee from the outstanding trust
preferred securities not previously called for redemption, or if the
trust preferred securities are then held in the form of a global trust
preferred security, in accordance with the depository's customary
procedures. The property trustee shall promptly notify the securities
registrar for the trust securities in writing of the trust preferred
securities selected for redemption and, in the case of any trust
preferred securities selected for partial redemption, the liquidation
amount to be redeemed. For all purposes of the trust agreements,
unless the context otherwise requires, all provisions relating to
the redemption of trust preferred securities shall relate, in
the case of any trust preferred securities redeemed or to be
redeemed only in part, to the portion of the aggregate liquidation
amount of trust 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 before the redemption date to each registered
holder of trust preferred securities to be redeemed at its address
appearing on the securities register for the trust securities. Unless
we default in payment of the redemption price on the related debt
securities, on and after the redemption date interest will cease to
accrue on the debt securities or portions of them called for
redemption.
SUBORDINATION OF TRUST COMMON SECURITIES. If on any
distribution date or redemption date a payment event of default with
respect to the underlying debt securities has occurred and is
continuing, no payment on or in respect of the related trust common
securities shall be made unless all amounts due in respect of the
related trust preferred securities (including the liquidation amount
or redemption price, if applicable) shall have been paid or payment
provided for. All funds immediately available to the respective
property trustee shall first be applied to the payment in full in cash
of all distributions on, or redemption price of, the trust preferred
securities then due and payable.
In the case of any event of default, as defined below,
resulting from an event of default with respect to the underlying debt
securities, the holders of trust common securities will be deemed to
have waived any right to act with respect to any event of default
under the related trust agreement until the effects of all events of
default with respect to the related trust preferred securities have
been cured, waived or otherwise eliminated. See "-Events of Default"
and "Description of Debt Securities-Events of Default." Until all
events of default under the related trust agreement with respect to
the trust preferred securities have been so cured, waived or otherwise
eliminated, the property trustee will act solely on behalf of the
holders of the trust preferred securities and not on behalf of the
holders of the trust common securities, and only the holders of the
trust preferred securities will have the right to direct the property
trustee to act on their behalf.
LIQUIDATION DISTRIBUTION UPON DISSOLUTION. In the event of
any liquidation of a trust, the applicable prospectus supplement will
state the amount payable on the trust preferred securities issued by
that trust as a dollar amount per trust preferred security plus
accumulated and unpaid distributions to the date of payment, subject
to certain exceptions, which may be in the form of a distribution of
the amount in debt securities held by that trust.
The holders of all the outstanding trust common securities
of a trust have the right at any time to dissolve the trust and, after
satisfaction of liabilities to creditors of the trust as provided by
applicable law, cause the debt securities held by that trust to be
distributed in liquidation of the trust to the holders of the trust
preferred securities and trust common securities issued by the trust.
23
Pursuant to the related trust agreement, unless the
applicable prospectus supplement states otherwise, a trust will
automatically dissolve upon expiration of its term or, if earlier,
will dissolve on the first to occur of:
* events of bankruptcy, dissolution or liquidation involving
us or the holder of the trust common securities, as specified
in the trust agreement;
* the giving by the holder of the trust common securities
issued by the trust of written direction to the property
trustee to dissolve the trust, which direction, subject to the
foregoing restrictions, is optional and wholly within the
discretion of the holder of the trust common securities;
* the redemption of all the trust preferred securities issued
by the trust in connection with the repayment or redemption of
all the debt securities as described under "-Redemption"; and
* the entry of an order for the dissolution of the trust by a
court of competent jurisdiction.
If dissolution of a trust occurs as described in the first,
second or fourth bullet point above, the trust will be liquidated by
the property trustee as expeditiously as the property trustee
determines to be possible by distributing, after satisfaction of
liabilities to creditors of the trust as provided by applicable law,
to the holders of the trust securities issued by the trust a Like
Amount of the related debt securities. If such distribution is not
practical, or, if a dissolution of a trust occurs as described in the
third bullet point above, the holders will be entitled to receive out
of the assets of the trust available for distribution to holders,
after satisfaction of liabilities to creditors of the trust as
provided by applicable law, an amount equal to, in the case of holders
of the trust preferred securities, the aggregate of the liquidation
amount plus accumulated and unpaid distributions to the date of
payment. In this prospectus we refer to this amount as the
"liquidation distribution." If the liquidation distribution can be
paid only in part because the trust has insufficient assets available
to pay in full the aggregate liquidation distribution, then the
amounts payable directly by the trust on its trust preferred
securities shall be paid on a proportionate basis. The holders of the
trust common securities issued by the trust will be entitled to
receive distributions upon any liquidation proportionately with the
holders of the trust preferred securities, except that if a payment
event of default has occurred and is continuing on the related debt
securities, the trust preferred securities shall have a priority over
the trust common securities. See "-Subordination of Trust Common
Securities."
After the liquidation date is fixed for any distribution of
debt securities we have issued to a trust,
* the trust preferred securities issued by that trust will no
longer be deemed to be outstanding,
* the depository or its nominee, as the registered holder of
the trust preferred securities, will receive a registered
global certificate or certificates representing the debt
securities to be delivered upon the distribution with respect
to the trust preferred securities held by the depository or its
nominee, and
* any certificates representing the trust preferred securities
not held by the depository or its nominee will be deemed to
represent the debt securities having a principal amount equal
to the stated liquidation amount of the trust
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preferred securities and bearing accrued and unpaid interest
in an amount equal to the accumulated and unpaid distributions
on the trust preferred securities until the certificates are
presented to the security registrar for the trust securities
for transfer or reissuance.
If we do not redeem the debt securities we have issued to a
trust prior to the stated maturity and the trust is not liquidated and
the debt securities are not distributed to
holders of the trust preferred securities issued by that trust, the
trust preferred securities will remain outstanding until the repayment
of the debt securities and the distribution of the liquidation
distribution to the holders of the trust preferred securities.
There can be no assurance as to the market prices for trust
preferred securities or the related debt securities that may be
distributed in exchange for trust preferred securities if a
dissolution and liquidation of a trust were to occur. Accordingly, the
trust preferred securities that an investor may purchase, or the
related debt securities that the investor may receive on dissolution
and liquidation of a trust, may trade at a discount to the price that
the investor paid to purchase the trust preferred securities offered
hereby.
CERTAIN COVENANTS. In connection with the issuance of trust
preferred securities by a trust, we will agree:
* to continue to hold, directly or indirectly, 100% of the
trust common securities of any trust to which debt
securities have been issued while such debt securities are
outstanding, provided that certain successors that are
permitted pursuant to the applicable indenture may succeed
to our ownership of the trust common securities;
* not to voluntarily dissolve, wind up or liquidate a trust to
which debt securities have been issued, other than in
connection with a distribution of debt securities to the
holders of the trust preferred securities in liquidation of
a trust or in connection with certain mergers,
consolidations or amalgamations permitted by the trust
agreements; and
* to use our reasonable efforts, consistent with the terms and
provisions of the trust agreements, to cause each trust to
which debt securities have been issued to continue not to
be taxable other than as a grantor trust for United States
federal income tax purposes.
Unless the applicable prospectus supplement states
otherwise, we will also agree that we will not (1) declare or pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of our capital stock,
(2) make any payment of principal of or interest or premium, if any,
on or repay, repurchase or redeem any debt securities of ours that
rank equally with, or junior to, the debt securities (or, with respect
to senior deferrable debt securities, make any payment of interest on
senior deferrable debt securities with similar deferral provisions or
make any payment of principal of or interest or premium, if any, on or
repay, repurchase or redeem any debt securities that rank junior to
such senior deferrable debt securities), or (3) make any guarantee
payments with respect to any guarantee issued by us if such guarantee
ranks equally with, or junior to, the debt securities (or, with
respect to senior deferrable debt securities, make any guarantee
payments with respect to any guarantee issued by us if such guarantee
ranks junior to such senior deferrable debt securities), other than,
in each case:
25
* repurchases, redemptions or other acquisitions of shares of
our capital stock in connection with any employment
contract, benefit plan or other similar arrangement with
or for the benefit of any one or more employees, officers,
directors or consultants or in connection
with a dividend reinvestment or shareholder stock purchase
plan;
* as a result of an exchange or conversion of any class or
series of our capital stock, or any capital stock of a
subsidiary of ours, for any class or series of
our capital stock or of any class or series of our then
outstanding indebtedness for any class or series of our
capital stock;
* the purchase of fractional interests in shares of our
capital stock pursuant to the conversion or exchange
provisions of the capital stock or the security being
converted or exchanged;
* payments under any guarantee executed and delivered by us
concurrently with the issuance of any trust preferred
securities;
* any declaration of a dividend in the form of capital stock
in connection with any shareholders' rights plan, or the
issuance of rights to capital stock under any shareholders'
rights plan, or the redemption or repurchase of rights
pursuant to any such plan; or
* any dividend in the form of stock, warrants, options or
other rights where the dividend stock or the stock issuable
upon exercise of the warrants, options or other rights is
the same stock as that on which the dividend is being
paid or ranks on a parity with or junior to the stock,
if at such time
* we have actual knowledge of any event that (a) with the
giving of notice or the lapse of time, or both, would
constitute an event of default under the applicable
indenture, and (b) we have not taken reasonable steps
to cure the same;
* we are in default with respect to our payment of any
obligations under any guarantee executed and delivered by us
concurrently with the issuance of any trust preferred
securities; or
* an extension period is continuing.
We will also agree that, if and for so long as a trust is
the holder of all debt securities issued by us in connection with the
issuance of trust preferred securities by that trust and that trust is
required to pay any additional taxes, duties or other governmental
charges, including in connection with a Tax Event, we will pay as
additional sums on the debt securities the amounts that may be
required so that the distributions payable by that trust will not be
reduced as a result of any additional taxes, duties or other
governmental charges.
EVENTS OF DEFAULT. Any one of the following events
constitutes an event of default with respect to the trust preferred
securities issued by a trust under the related trust agreement:
26
* default by the trust in the payment of any distribution when
it becomes due and payable, and continuation of the default
for a period of 30 days;
* default by the trust in the payment of any redemption price
of any trust security issued by that trust when it becomes
due and payable, and continuation of the default for one
day;
* default in the performance, or breach, in any material
respect, of any covenant or warranty of the property trustee
and the Delaware trustee in the trust agreement, other
than as described above, and continuation of the default or
breach for a period of 60 days after there has been given,
by registered or certified mail, to the appropriate trustees
and to us by the holders of at least 33% in aggregate
liquidation amount of the outstanding trust preferred
securities, a written notice specifying the default or
breach and requiring it to be remedied and stating that the
notice is a "Notice of Default" under the trust agreement;
* the occurrence of an event of default under the applicable
indenture relating to the debt securities held by a trust
(see "Description of Debt Securities-Events of Default");
* the occurrence of certain events of bankruptcy or
insolvency with respect to the property trustee or all or
substantially all of its property if a successor property
trustee has not been appointed within 90 days of the
occurrence; or
* the occurrence of certain events of bankruptcy or insolvency
with respect to the trust.
Within five business days after the occurrence of certain
events of default actually known to the respective property trustee,
the property trustee will transmit notice of the event of default to
the respective holders of trust securities and the respective
administrators, unless the event of default has been cured or waived.
Within five business days after the receipt of notice that we intend
to exercise our right under the applicable indenture to defer the
payment of interest on the related debt securities, the property
trustee must notify the holders and the administrators that we intend
to defer these interest payments, unless we have revoked our
determination to do so.
The applicable trust agreement includes provisions as to the
duties of the property trustee in case an event of default occurs and
is continuing. Consistent with these provisions, the property trustee
will be under no obligation to exercise any of its rights or powers at
the request or direction of any of the holders unless those holders
have offered to the property trustee reasonable indemnity satisfactory
to it. Subject to these provisions for indemnification, the holders of
a majority in liquidation amount of the related outstanding trust
preferred securities may direct the time, method and place of
conducting any proceeding for any remedy available to the property
trustee, or exercising any trust or power conferred on the property
trustee, with respect to the related trust preferred securities.
The holders of at least a majority in aggregate liquidation
amount of the outstanding trust preferred securities issued by a trust
may waive any past default under the applicable trust agreement
except:
* a default in the payment of any distribution when it becomes
due and payable or any redemption price;
27
* a default with respect to certain covenants and provisions
of the applicable trust agreement that cannot be modified or
amended without consent of the holder of each outstanding
trust preferred security; and
* a default under the applicable indenture that the holders of
a majority in liquidation amount of the trust preferred
securities would not be entitled to waive under the
applicable trust agreement.
If an event of default under the applicable indenture has
occurred and is continuing as a result of any failure by us to pay any
amounts when due in respect of the related debt securities issued by
us to a trust, the related trust preferred securities will have a
preference over the related trust common securities with respect to
payments of any amounts in respect of the trust preferred securities
as described above. See "-Subordination of Trust Common Securities,"
"-Liquidation Distribution Upon Dissolution" and "Description of Debt
Securities-Events of Default."
We must furnish annually to each property trustee a
statement by an appropriate officer as to that officer's knowledge of
our compliance with all conditions and covenants under the respective
trust agreement. Also, the administrators for each trust must file, on
behalf of the respective trust, a statement as to our compliance with
all conditions and covenants under the respective trust agreement.
VOTING RIGHTS; AMENDMENT OF TRUST AGREEMENT. Except as
provided below and under "-Resignation, Removal of Property Trustee
and Delaware Trustee; Appointment of Successors" and "Description of
Guarantees-Amendments and Assignment" and as otherwise required by law
and the applicable trust agreement, the holders of the trust preferred
securities issued by a trust will have no voting rights.
The trust agreement applicable to a trust may be amended
from time to time by the holders of a majority in liquidation amount
of its trust common securities and the respective property trustee,
without the consent of the holders of the trust preferred securities
issued by the trust:
* to cure any ambiguity, correct or supplement any provisions
in the trust agreements that may be inconsistent with any
other provision, or to make any other provisions with respect
to matters or questions arising under the trust agreements,
provided that any such amendment does not adversely affect
in any material respect the interests of any holder of trust
securities;
* to facilitate the tendering, remarketing and settlement of
the trust preferred securities, as contemplated in the trust
agreement;
* to modify, eliminate or add to any provisions of the trust
agreements to the extent as may be necessary to ensure that
a trust will not be taxable other than as a grantor trust
for United States federal income tax purposes at any time
that any trust securities are outstanding or to ensure that
a trust will not be required to register as an "investment
company" under the Investment Company Act; or
* to reflect the appointment of a successor trustee.
28
The trust agreement may be amended by the holders of a
majority in aggregate liquidation amount of the trust common
securities and the property trustee with the consent of holders
representing not less than a majority in aggregate liquidation amount
of the outstanding trust preferred securities and receipt by the
property trustee and the Delaware trustee of an opinion of counsel to
the effect that the amendment or the exercise of any power granted to
the trustees in accordance with the amendment will not affect the
trust's not being taxable other than 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.
Without the consent of each holder of trust preferred
securities affected by the amendment or related exercise of power, the
trust agreement applicable to a trust 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 payment due.
So long as any debt securities are held by a trust, the
respective property trustee will not:
* direct the time, method and place of conducting any
proceeding for any remedy available to the trustee for the debt
securities under the related indenture, or execute any trust or
power conferred on the property trustee with respect to the
related debt securities;
* waive any past default that is waivable under the applicable
indenture;
* exercise any right to rescind or annul a declaration that
the debt securities shall be due and payable; or
* consent to any amendment, modification or termination of the
applicable indenture or the related debt securities, where
consent shall be required;
without, in each case, obtaining the prior approval of the holders of
at least a majority in aggregate liquidation amount of the trust
preferred securities, except that, if a consent under the applicable
indenture would require the consent of each holder of debt securities
affected by the consent, no consent will be given by the property
trustee without the prior written consent of each holder of the trust
preferred securities.
A property trustee may not revoke any action previously
authorized or approved by a vote of the holders of the trust preferred
securities issued by its respective trust except by subsequent vote of
the holders of the trust preferred securities. The property trustee
will notify each holder of trust preferred securities of any notice of
default with respect to the debt securities. In addition, before
taking any of the foregoing actions, the property trustee will obtain
an opinion of counsel experienced in relevant matters to the effect
that the trust will not be taxable other than as a grantor trust for
United States federal income tax purposes on account of the action.
Any required approval of holders of trust preferred
securities issued by a trust may be given at a meeting of holders of
those trust preferred securities convened for the purpose or pursuant
to written consent. The property trustee will cause a notice of any
meeting at which holders of trust preferred securities are entitled to
vote, or of any matter upon which action by written consent of the
holders is to be taken, to be given to each registered holder of trust
preferred securities in the manner set forth in the applicable trust
agreement.
29
No vote or consent of the holders of trust preferred
securities issued by a trust will be required to redeem and cancel
those trust preferred securities in accordance with the applicable
trust agreement. See above under "-Redemption."
Notwithstanding that holders of trust preferred securities
issued by a trust are entitled to vote or consent under any of the
circumstances described above, any of those trust preferred securities
that are owned by us, the respective property trustee or Delaware
trustee, or any affiliate of us or either trustee, will, for purposes
of the vote or consent, be treated as if they were not outstanding.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF TRUST PREFERRED
SECURITIES. If an event of default has occurred and is continuing
under the applicable indenture, and the trustee for the related debt
securities and the holders of those debt securities have failed to
declare the principal due and payable, the holders of at least 33% in
aggregate liquidation amount of the related outstanding trust
preferred securities shall have this right.
If an event of default has occurred and is continuing under
a trust agreement and the event is attributable to our failure to pay
any amounts payable in respect of debt securities on the date the
amounts are otherwise payable, a registered holder of trust preferred
securities may institute a direct action against us for enforcement of
payment to the holder of an amount equal to the amount payable in
respect of debt securities having a principal amount equal to the
aggregate liquidation amount of the trust preferred securities held by
the holder, which we refer to in this discussion as a "Direct Action."
We will have the right under the applicable indenture to set-off any
payment made to the holders of trust preferred securities by us in
connection with a Direct Action.
We may not amend the applicable indenture to remove the
foregoing right to bring a Direct Action without the prior written
consent of the holders of all the trust preferred securities.
Furthermore, so long as any of the trust preferred securities are
outstanding
* no modification of the applicable indenture may be made that
adversely affects the holders of the trust preferred
securities in any material respect,
* no termination of the applicable indenture may occur and
* no waiver of any event of default or compliance with any
covenant under the applicable indenture may be effective,
without the prior consent of the holders of at least a majority of the
aggregate liquidation amount of the outstanding trust preferred
securities unless and until the principal of, accrued and unpaid
interest on and premium, if any, on the related debt securities have
been paid in full and certain other conditions are satisfied.
With certain exceptions, the holders of the trust preferred
securities would not be able to exercise directly any remedies
available to the holders of the debt securities except under the
circumstances described in this section.
RESIGNATION, REMOVAL OF PROPERTY TRUSTEE AND DELAWARE
TRUSTEE; APPOINTMENT OF SUCCESSORS. The property trustee or the
Delaware trustee of a trust may resign at any time by giving written
notice to us or may be removed at any time by an action of the holders
of a majority in liquidation amount of that trust's outstanding trust
preferred securities delivered to the trustee to be removed and to us.
No resignation or removal of either
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of the trustees and no appointment of a successor trustee will become
effective until a successor trustee accepts appointment in accordance
with the requirements of the trust agreement. So long as no event of
default or event that would become an event of default has occurred
and is continuing, and except with respect to a trustee appointed
by an action of the holders, if we have delivered to either the
property trustee or the Delaware trustee a resolution of our board
of directors appointing a successor trustee and the successor trustee
has accepted the appointment in accordance with the terms of the
trust agreement, the property trustee or the Delaware trustee, as
the case may be, will be deemed to have resigned and the successor
trustee will be deemed to have been appointed as trustee in
accordance with the trust agreement.
MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF A
TRUST. A trust may not merge with or into, consolidate, amalgamate,
or be replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to any entity, except as described
below or as otherwise set forth in the applicable trust agreement. A
trust may, at the request of the holders of its trust common
securities and with the consent of the holders of at least a majority
in aggregate liquidation amount of its outstanding trust preferred
securities, merge with or into, consolidate, amalgamate, or be
replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to a trust organized as such under the
laws of any state, so long as:
* the successor entity either expressly assumes all the
obligations of the trust with respect to its trust preferred
securities or substitutes for the trust preferred securities
other securities having substantially the same terms as the
trust preferred securities, which we refer to in this
prospectus as the successor securities, so long as the
successor securities have the same priority as the trust
preferred securities with respect to distributions and
payments upon liquidation, redemption and otherwise;
* a trustee of the successor entity, possessing the same
powers and duties as the property trustee, is appointed to
hold the related debt securities;
* the merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the trust
preferred securities, including any successor securities,
to be downgraded by any nationally recognized statistical
rating organization;
* the trust preferred securities or any successor securities
are listed or quoted, or any successor securities will be
listed or quoted upon notification of issuance, on any
national securities exchange or with another organization
on which the trust preferred securities are then listed
or quoted;
* the merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect
the rights, preferences and privileges of the holders of
the trust preferred securities, including any successor
securities, in any material respect;
* the successor entity has a purpose substantially identical
to that of the trust;
* prior to the merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the property
trustee has received an opinion from independent counsel
experienced in relevant matters to the effect that such
transaction does not adversely affect the rights,
preferences and privileges of
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the holders of the trust preferred securities, including
any successor securities, in any material respect and
following such transaction, neither the trust nor the
successor entity will be required to register as an
investment company under the Investment Company Act; and
* we or any permitted successor or assignee owns all the trust
common securities of the successor entity and guarantees the
obligations of the successor entity under the successor
securities at least to the extent provided by the applicable
guarantee.
Notwithstanding the foregoing, a trust may not, except with
the consent of holders of 100% in aggregate liquidation amount of the
trust preferred securities, consolidate, amalgamate, merge with or
into, or be replaced by or convey, transfer or lease its properties
and assets substantially as an entirety to, any other entity or permit
any other entity to consolidate, amalgamate, merge with or into, or
replace it if the consolidation, amalgamation, merger, replacement,
conveyance, transfer or lease would cause the trust or the successor
entity to be taxable other than as a grantor trust for United States
federal income tax purposes.
EXPENSES AND TAXES. In each of the trust agreements, we
have agreed to pay:
* all debts and other obligations, other than with respect to
the trust preferred securities issued by a trust and all
costs and expenses of the trust, including the costs and
expenses relating to the organization of a trust, the fees
and expenses of the property trustee and the Delaware
trustee and the costs and expenses relating to the operation
of the trust; and
* any and all taxes and all costs and expenses with respect to
them, other than withholding taxes, to which the trust might
become subject.
INFORMATION CONCERNING THE PROPERTY TRUSTEES. Each property
trustee, other than during the occurrence and continuance of an event
of default, undertakes to perform only the duties as are specifically
set forth in the applicable trust agreement and, after an 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, each property trustee is under no
obligation to exercise any of the powers vested in it by the trust
agreements at the request of any holder of trust preferred securities
issued by the respective trust unless it is offered reasonable
indemnity satisfactory to it against the costs, expenses and
liabilities that might be incurred by exercising these powers.
MISCELLANEOUS. The administrators and the property trustee
relating to each trust 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 taxable other than as a grantor
trust for United States federal income tax purposes and so that the
debt securities held by that trust will be treated as indebtedness of
ours for United States federal income tax purposes. In this regard,
each property trustee and the holders of trust common securities
issued by the respective trust are authorized to take any action, not
inconsistent with applicable law, the certificate of trust of the
trust or the applicable trust agreement, that the property trustee and
the holders of trust common securities determine in their discretion
to be necessary or desirable for these purposes, as long as this
action does not materially adversely affect the interests of the
holders of the trust preferred securities.
Holders of the trust preferred securities have no preemptive
or similar rights.
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A trust may not borrow money or issue debt or mortgage or
pledge any of its assets.
GOVERNING LAW. The trust agreement and the trust preferred
securities will be governed by Delaware law.
DESCRIPTION OF GUARANTEES
Each guarantee will be executed and delivered by us
concurrently with the issuance of trust preferred securities by a
trust for the benefit of the holders from time to time of the trust
preferred securities. We will appoint a guarantee trustee under each
guarantee. Each guarantee trustee will hold the respective guarantee
for the benefit of the holders of the trust preferred securities
issued by the related trust. Each guarantee will be qualified as an
indenture under the Trust Indenture Act of 1939. We have summarized
below certain provisions of the guarantees. This summary does not
purport to be complete and is subject to, and qualified in its
entirety by reference to, all the provisions of the guarantee,
including the definitions in the guarantee of certain terms. The form
of guarantee agreement is filed as an exhibit to the registration
statement of which this prospectus is a part.
GENERAL. We will fully and unconditionally agree, to the
extent described herein, to pay the guarantee payments, as defined
below, to the holders of the trust preferred securities issued by each
trust, as and when due, regardless of any defense, right of set-off or
counterclaim that a trust may have or assert other than the defense of
payment. The following payments with respect to the trust preferred
securities, to the extent not paid or made by or on behalf of the
respective trust, which payments we refer to in this discussion as the
"guarantee payments," will be subject to the respective guarantee:
* any accumulated and unpaid distributions required to be paid
on the trust preferred securities, to the extent that the
trust has funds on hand available therefor;
* the redemption price with respect to any trust preferred
securities called for redemption, to the extent that the trust
has funds on hand available for payment therefor; and
* upon a voluntary or involuntary dissolution, winding up or
liquidation of the trust, unless the related debt securities
are distributed to holders of the trust preferred securities,
the lesser of:
- the aggregate of the liquidation amount and all
accumulated and unpaid distributions to the date
of payment, to the extent that the trust has funds
on hand available therefor; and
- the amount of assets of the trust remaining
available for distribution to holders of the trust
preferred securities on liquidation of the trust.
Our obligation to make a guarantee payment may be satisfied
by direct payment of the required amounts by us to the holders of the
trust preferred securities or by causing the trust to pay these
amounts to the holders.
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Each guarantee will be an irrevocable guarantee of the
obligations of the respective trust under its trust preferred
securities, but will apply only to the extent that the trust has funds
sufficient to make these payments, and is not a guarantee of
collection.
If we do not make payments on the debt securities held by a
trust, the trust will not be able to pay any amounts payable in
respect of its trust preferred securities and will not have funds
legally available for these payments. The applicable prospectus
supplement will describe the ranking of the guarantee. See "-Status of
the Guarantees." The guarantees do not limit our incurrence or
issuance of other secured or unsecured debt, including Senior
Indebtedness, whether under the applicable indenture, any other
indenture that we may enter into in the future or otherwise.
We have, through the guarantees, the trust agreements, the
applicable debt securities and the related indenture, taken together,
fully, irrevocably and unconditionally guaranteed all of each trust's
obligations under its trust preferred securities. No single document
standing alone or operating in conjunction with fewer than all the
other documents constitutes the guarantee. It is only the combined
operation of these documents that has the effect of providing a full,
irrevocable and unconditional guarantee of each trust's obligations in
respect of its trust preferred securities. See "Relationship Among
Trust Preferred Securities, Debt Securities and Guarantees."
STATUS OF THE GUARANTEES. Each guarantee will constitute an
unsecured obligation of ours. The applicable prospectus supplement
will describe the ranking of each guarantee.
Each guarantee will constitute a guarantee of payment and
not of collection; specifically, the guaranteed party may institute a
legal proceeding directly against the guarantor to enforce its rights
under the guarantee without first instituting a legal proceeding
against any other person or entity. Each guarantee will be held by the
respective guarantee trustee for the benefit of the holders of the
related trust preferred securities. A guarantee will not be discharged
except by payment of the applicable guarantee payments in full to the
extent not paid or distributed by the respective trust.
AMENDMENTS AND ASSIGNMENT. Except with respect to any
changes that do not materially adversely affect the rights of holders
of the related trust preferred securities, in which case no vote will
be required, a guarantee may not be amended without the prior approval
of the holders of not less than a majority of the aggregate
liquidation amount of the related trust preferred securities. The
manner of obtaining this type of approval will be as set forth under
"Description of Trust Preferred Securities-Voting Rights; Amendment of
Trust Agreement." All guarantees and agreements contained in each
guarantee shall bind the successors, assigns, receivers, trustees and
representatives of ours and shall inure to the benefit of the holders
of the related trust preferred securities then outstanding.
EVENTS OF DEFAULT. An event of default under a guarantee
will occur upon our failure to perform any of our payment or other
obligations under the guarantee, or to perform any other obligation if
such default remains unremedied for 30 days.
The holders of not less than a majority in aggregate
liquidation amount of the related trust preferred securities have the
right to direct the time, method and place of conducting any
proceeding for any remedy available to the guarantee trustee in
respect of the guarantee or to direct the exercise of any trust or
power conferred upon the guarantee trustee under the guarantee. Any
registered holder of trust preferred securities may institute a legal
proceeding directly against us to enforce its rights under the related
guarantee without first
34
instituting a legal proceeding against the related trust, the
guarantee trustee or any other person or entity.
We, as guarantor, are required to file annually with each
guarantee trustee a certificate as to whether or not we are in
compliance with all the conditions and covenants applicable to us
under each guarantee.
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER
TRANSACTIONS. Each guarantee provides that:
* we will not consolidate with or merge into any other entity,
* we shall not convey, transfer or lease all or substantially
all of our properties and assets to any other entity, and
* no entity will consolidate with or merge into us or convey,
transfer or lease all or substantially all of its properties
and assets to us,
unless
* either we are the continuing corporation, or the successor
entity is organized under the laws of the United States or
any state or the District of Columbia and such successor
entity expressly assumes our obligations under the guarantee,
* immediately after giving effect thereto, no event or default
under the guarantee agreement and no event which, after notice
or lapse of time or both, would become an event of default
under the guarantee agreement, has happened and is continuing,
and
* certain other conditions as prescribed in the guarantee
agreements are met.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE. The
guarantee trustee, other than during the occurrence and continuance of
a default by us in performance of the guarantee, undertakes to perform
only such duties as are specifically set forth in the guarantee
agreement. After a default with respect to the guarantee, the
guarantee trustee 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 is under no
obligation to exercise any of the powers vested in it by the guarantee
agreement at the request of any holder of the trust preferred
securities unless it is offered reasonable indemnity against the
costs, expenses and liabilities that it might thereby incur.
TERMINATION OF THE GUARANTEES. Each guarantee will
terminate and be of no further force and effect upon full payment of
the redemption price of the related trust preferred securities, upon
full payment of the amounts payable with respect to the trust
preferred securities upon liquidation of the respective trust and upon
distribution of the related debt securities to the holders of the
trust preferred securities. Each guarantee will continue to be
effective or will be reinstated, as the case may be, if at any time
any holder of the related trust preferred securities must restore
payment of any sums paid under the trust preferred securities or the
guarantee.
GOVERNING LAW. Each guarantee will be governed by New York
law.
35
RELATIONSHIP AMONG TRUST PREFERRED SECURITIES,
DEBT SECURITIES AND GUARANTEES
FULL AND UNCONDITIONAL GUARANTEE. Payments of distributions
and other amounts due on the trust preferred securities issued by a
trust, to the extent the trust has funds available for the payment,
are irrevocably guaranteed by us as and to the extent set forth under
"Description of Guarantees." Taken together, our obligations under the
related debt securities, the applicable indenture, the related trust
agreement and the related guarantee provide, in the aggregate, a full,
irrevocable and unconditional guarantee of payments of distributions
and other amounts due on the trust preferred securities issued by a
trust. No single document standing alone or operating in conjunction
with fewer than all the other documents constitutes the guarantee. It
is only the combined operation of these documents that has the effect
of providing a full, irrevocable and unconditional guarantee of each
trust's obligations in respect of the related trust preferred
securities. If and to the extent that we do not make payments on the
debt securities issued to a trust, the trust will not have sufficient
funds to pay distributions or other amounts due on its trust preferred
securities. A guarantee does not cover payment of amounts payable with
respect to the trust preferred securities issued by a trust when the
trust does not have sufficient funds to pay these amounts. In this
event, the remedy of a holder of the trust preferred securities is to
institute a legal proceeding directly against us for enforcement of
payment of our obligations under debt securities having a principal
amount equal to the liquidation amount of the trust preferred
securities held by the holder.
SUFFICIENCY OF PAYMENTS. As long as payments are made when
due on the debt securities issued to a trust, these payments will be
sufficient to cover distributions and other payments distributable on
the trust preferred securities issued by that trust, primarily
because:
* the aggregate principal amount of the debt securities will
be equal to the sum of the aggregate stated liquidation amount
of the trust preferred securities and trust common securities;
* the interest rate and interest and other payment dates on
the debt securities will match the distribution rate,
distribution dates and other payment dates for the trust
preferred securities;
* we will pay for any and all costs, expenses and liabilities
of the trust except the trust's obligations to holders of the
related trust securities; and
* the applicable trust agreement further provides that the
trust will not engage in any activity that is not consistent
with the limited purposes of the trust.
Notwithstanding anything to the contrary in the applicable
indenture, we have the right to set-off any payment we are otherwise
required to make under that indenture against and to the extent we
have previously made, or are concurrently on the date of the payment
making, a payment under a guarantee.
ENFORCEMENT RIGHTS OF HOLDERS OF TRUST PREFERRED SECURITIES.
Under the circumstances set forth under "Description of Trust
Preferred Securities-Enforcement of Certain Rights by Holders of Trust
Preferred Securities," holders of trust preferred securities may bring
a Direct Action against us.
36
A holder of any trust preferred security may institute a
legal proceeding directly against us to enforce its rights under the
related guarantee without first instituting a legal proceeding against
the related guarantee trustee, the related trust or any other person
or entity. See "Description of Guarantees."
LIMITED PURPOSE OF TRUST. The trust preferred securities
issued by a trust represent preferred undivided beneficial interests
in the assets of the trust, and the trust exists for the sole purpose
of issuing its trust preferred securities and trust common securities
and investing the proceeds of these trust securities in debt
securities. A principal difference between the rights of a holder of a
trust preferred security and a holder of a debt security is that a
holder of a debt security is entitled to receive from us payments on
debt securities held, while a holder of trust preferred securities is
entitled to receive distributions or other amounts distributable with
respect to the trust preferred securities from a trust, or from us
under a guarantee, only if and to the extent the trust has funds
available for the payment of the distributions.
RIGHTS UPON DISSOLUTION. Upon any voluntary or involuntary
dissolution of a trust, other than any dissolution involving the
distribution of the related debt securities, after satisfaction of
liabilities to creditors of the trust as required by applicable law,
the holders of the trust preferred securities issued by the trust will
be entitled to receive, out of assets held by the trust, the
liquidation distribution in cash. See "Description of Trust Preferred
Securities-Liquidation Distribution Upon Dissolution." Since we are
the guarantor under each of the guarantees and have agreed to pay for
all costs, expenses and liabilities of each trust, other than each
trust's obligations to the holders of the respective trust securities,
the positions of a holder of trust preferred securities and a holder
of debt securities relative to other creditors and to our shareholders
in the event of our liquidation or bankruptcy are expected to be
substantially the same.
DESCRIPTION OF COMMON STOCK
GENERAL. The following descriptions of our common stock and
the relevant provisions of our restated Articles of Incorporation and
by-laws are summaries and are qualified by references to our Articles
of Incorporation and by-laws which have been previously filed with the
SEC and are exhibits to this registration statement, of which this
prospectus is a part, as well as the applicable Missouri General and
Business Corporation Law.
Under our Articles of Incorporation, we are authorized to
issue 162,962,000 million shares of stock, divided into classes as
follows:
* 390,000 shares of Cumulative Preferred Stock with a par
value of $100;
* 1,572,000 shares of Cumulative No Par Preferred Stock with
no par value;
* 11,000,000 shares of Preference Stock with no par value; and
* 150,000,000 shares of Common Stock with no par value.
At March 31, 2002, 390,000 shares of Cumulative Preferred
Stock and 61,908,574 shares of common stock were outstanding. No
shares of Cumulative No Par Preferred Stock or Preference Stock are
currently outstanding but such shares may be issued from time to time
in accordance with the Articles of Incorporation. The voting powers,
designations, preferences, rights and qualifications, limitations, or
restrictions of any series of Preference Stock are set by our board of
directors when it is issued.
37
DIVIDEND RIGHTS AND LIMITATIONS. The holders of our common
stock are entitled to receive such dividends as our board of directors
may from time to time declare, subject to any rights of the holders of
our preferred and preference stock. Our ability to pay dividends
depends primarily upon the ability of our subsidiaries to pay
dividends or otherwise transfer funds to us.
Except as otherwise authorized by consent of the holders of
at least two-thirds of the total number of shares of the total
outstanding shares of Cumulative Preferred Stock and Cumulative No Par
Preferred Stock, we may not pay or declare any dividends on common
stock, other than the dividends payable in common stock, or make any
distributions on, or purchase or otherwise acquire for value, any
shares of common stock if, after giving effect thereto, the aggregate
amount expended during the 12 months then ended (a) exceeds 50% of the
net income of the Company available for dividends on Preference Stock
and common stock for the preceding 12 months, in case the total of
Preference Stock and common stock equity would be reduced to less than
20% of total capitalization, or (b) exceeds 75% of such net income in
case such equity would be reduced to between 20% and 25% of total
capitalization, or (c) except to the extent permitted in subparagraphs
(a) and (b), would reduce such equity below 25% of total
capitalization.
No dividends may be declared or paid on common stock and no
common stock may be purchased or redeemed or otherwise retired for
consideration (a) unless all past and current dividends on Cumulative
Preferred Stock and Cumulative No Par Preferred Stock have been paid
or set apart for payment and (b) except to the extent of retained
earnings (earned surplus).
VOTING RIGHTS. Except as otherwise provided by law and
subject to the voting rights of the outstanding Cumulative Preferred
Stock, Cumulative No Par Preferred Stock, and Preference Stock, the
holders of our common stock have the exclusive right to vote for all
general purposes and for the election of directors through cumulative
voting. This means each shareholder has a total vote equal to the
number of shares they own multiplied by the number of directors to be
elected. These votes may be divided among all nominees equally or may
be voted for one or more of the nominees either in equal or unequal
amounts. The nominees with the highest number of votes are elected.
The consent of specified percentages of holders of
outstanding shares of Cumulative Preferred Stock and Cumulative No Par
Preferred Stock is required to authorize certain actions which may
affect their interests; and if, at any time, dividends on any of the
outstanding shares of Cumulative Preferred Stock and Cumulative No Par
Preferred Stock shall be in default in an amount equivalent to four or
more full quarterly dividends, the holders of outstanding shares of
all preferred stock, voting as a single class, shall be entitled
(voting cumulatively) to elect the smallest number of directors
necessary to constitute a majority of the full Board of Directors,
which right shall continue in effect until all dividend arrearages
shall have been paid.
LIQUIDATION RIGHTS. In the event of any dissolution or
liquidation of the Company, after there shall have been paid to or set
aside for the holders of shares of outstanding Cumulative Preferred
Stock, Cumulative No Par Preferred Stock, and Preference Stock the
full preferential amounts to which they are respectively entitled, the
holders of outstanding shares of common stock shall be entitled to
receive pro rata, according to the number of shares held by each, the
remaining assets available for distribution.
MISCELLANEOUS. The outstanding shares of common stock are, and the
shares of common stock sold hereunder will be, upon payment for them,
fully paid and nonassessable.
38
The holders of our common stock are not entitled to any preemptive or
preferential rights to subscribe for or purchase any part of any new
or additional issue of stock or securities convertible into stock. Our
common stock does not contain any redemption provisions or conversion
rights.
TRANSFER AGENT AND REGISTRAR. UMB Bank, N.A. acts as
transfer agent and registrar for our common stock.
BUSINESS COMBINATIONS. The affirmative vote of the holders
of at least 80% of the outstanding shares of common stock is required
for the approval or authorization of certain business combinations;
provided, however, that such 80% voting requirement shall not be
applicable if:
* the business combination shall have been approved by a
majority of the continuing directors; or
* the cash or the fair market value of the property,
securities, or other consideration to be received per share
by holders of the common stock in such business combination
is not less than the highest per-share price paid by or on
behalf of the acquiror for any shares of common stock during
the five-year period preceding the announcement of the
business combination.
DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS
We may issue stock purchase contracts, including contracts
obligating holders to purchase from us, and us to sell to the holders,
a specified number of shares of our common stock (or a range of
numbers of shares pursuant to a predetermined formula) at a future
date or dates, or warrants. The price per share of common stock and
the number of shares of common stock may be fixed at the time the
stock purchase contracts or warrants are issued or may be determined
by reference to a specific formula set forth in the stock purchase
contracts. The stock purchase contracts may be issued separately or as
part of units, often known as stock purchase units, consisting of a
stock purchase contract and beneficial interests in:
* senior debt securities or subordinated debt securities,
* debt obligations of third parties, including U.S. treasury
securities, or
* trust preferred securities issued by trusts, all of whose
common securities are owned by us or by one of our subsidiaries,
securing the holders' obligations to purchase the common stock under
the stock purchase contracts. The stock purchase contracts may require
us to make periodic payments to the holders of the stock purchase
units or vice versa, and these payments may be unsecured or prefunded
on some basis. The stock purchase contracts may require holders to
secure their obligations under those contracts in a specified manner
and, in certain circumstances, we may deliver newly issued prepaid
stock purchase contracts, often known as prepaid securities, upon
release to a holder of any collateral securing such holder's
obligation under the original stock purchase contract.
The applicable prospectus supplement will describe the terms
of the stock purchase contracts, stock purchase units or warrants,
including, if applicable, collateral or depositary arrangements.
39
BOOK-ENTRY SYSTEM
Unless otherwise indicated in the applicable prospectus
supplement, each series of debt securities (other than debt securities
issued to a trust) and trust preferred securities will initially be
issued in the form of one or more global securities, in registered
form, without coupons. The global security will be deposited with, or
on behalf of, the depository, and registered in the name of the
depository or a nominee of the depository. Unless otherwise indicated
in the applicable prospectus supplement, the depository for any global
securities will be The Depository Trust Company, or DTC.
So long as the depository, or its nominee, is the registered
owner of a global security, such depository or such nominee, as the
case may be, will be considered the owner of such global security for
all purposes under the applicable indenture, including for any notices
and voting. Except in limited circumstances, the owners of beneficial
interests in a global security will not be entitled to have securities
registered in their names, will not receive or be entitled to receive
physical delivery of any such securities and will not be considered
the registered holder thereof under the applicable indenture.
Accordingly, each person holding a beneficial interest in a global
security must rely on the procedures of the depository and, if such
person is not a direct participant, on procedures of the direct
participant through which such person holds its interest, to exercise
any of the rights of a registered owner of such security.
Global securities may be exchanged in whole for certificated
securities only if:
* the depository notifies us that it is unwilling or unable to
continue as depository for the global securities or the
depository has ceased to be a clearing agency registered under
the Exchange Act and, in either case, we thereupon fail to
appoint a successor depository within 90 days:
* we, at our option, notify the trustee in writing that we
elect to cause the issuance of certificated securities; or
* there shall have occurred and be continuing an event of
default with respect to the applicable securities of any series.
In any such case, we have agreed to notify the applicable trustee in
writing that, upon surrender by the direct participants and indirect
participants of their interest in such global securities, certificated
securities representing the applicable securities will be issued to
each person that such direct participants and indirect participants
and the depository identify as being the beneficial owner of such
securities.
The following is based solely on information furnished by
DTC:
DTC will act as depository for the global securities. The
global securities will be issued as fully-registered securities
registered in the name of Cede & Co., DTC's partnership nominee. One
fully-registered global security certificate will be issued for each
issue of the global securities, each in the aggregate principal amount
of such issue and will be deposited with DTC.
DTC is a limited-purpose trust company organized under the
New York Banking Law, a "banking organization" within the meaning of
the New York Banking Law, a member of the Federal Reserve System, a
"clearing corporation" within the meaning of the New York Uniform
Commercial Code, and a "clearing corporation" registered pursuant to
the provisions of Section 17A of the Securities Exchange Act of 1934.
DTC holds securities that its direct
40
participants deposit with DTC. DTC also facilitates the settlement
among direct participants of securities transactions, such as
transfers and pledges, in deposited securities through electronic
computerized book-entry changes in direct participants' accounts,
thereby eliminating the need for physical movement of securities
certificates.
Direct participants include securities brokers and dealers,
banks, trust companies, clearing corporations and certain other
organizations. DTC is owned by a number of its direct participants and
by the New York Stock Exchange, Inc., the American Stock
Exchange, Inc. and the National Association of Securities
Dealers, Inc. Access to the DTC system is also available to others
such as securities brokers and dealers, banks and trust companies that
clear through or maintain a custodial relationship with a direct
participant, either directly or indirectly, which are referred to as
indirect participants and, together with the direct participants, the
participants. The rules applicable to DTC and its participants are on
file with the SEC.
Purchases of global securities under the DTC system must be
made by or through direct participants, who will receive a credit for
such purchases of global securities on DTC's records. The ownership
interest of each actual purchaser of each global security, or
beneficial owner, is in turn to be recorded on the direct and indirect
participants' records. Beneficial owners will not receive written
confirmation from DTC of their purchase, but beneficial owners are
expected to receive written confirmations providing details of the
transaction, as well as periodic statements of their holdings, from
the direct or indirect participant through which the beneficial owner
entered into the transaction. Transfers of ownership interests in the
global securities are to be accomplished by entries made on the books
of participants acting on behalf of beneficial owners. Beneficial
owners will not receive certificates representing their ownership
interests in the global securities, except in the event that use of
the book-entry system for the global securities is discontinued.
To facilitate subsequent transfers, all global securities
deposited by participants with DTC are registered in the name of DTC's
partnership nominee, Cede & Co. The deposit of global securities with
DTC and their registration in the name of Cede & Co. effect no change
in beneficial ownership. DTC has no knowledge of the actual beneficial
owners of the global securities; DTC's records reflect only the
identity of the direct participants to whose accounts such global
securities are credited which may or may not be the beneficial owners.
The participants will remain responsible for keeping account of their
holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to
direct participants, by direct participants to indirect participants,
and by direct participants and indirect participants to beneficial
owners will be governed by arrangements among them, subject to any
statutory or regulatory requirements as may be in effect from time to
time.
If the global securities are redeemable, redemption notices
shall be sent to Cede & Co. If less than all of the global securities
are being redeemed, DTC's practice is to determine by lot the amount
of the interest of each direct participant in such issue to be
redeemed.
Neither DTC nor Cede & Co. will consent or vote with respect
to the global securities. Under its usual procedures, DTC mails an
omnibus proxy to us as soon as possible after the record date. The
omnibus proxy assigns Cede & Co.'s consenting or voting rights to
those direct participants whose accounts the global securities are
credited on the record date, identified in a listing attached to the
omnibus proxy.
41
Principal, interest and premium payments, if any, on the
global securities will be made to DTC in immediately available funds.
DTC's practice is to credit direct participants' accounts on the date
on which interest is payable in accordance with the respective
holdings shown on DTC's records, unless DTC has reason to believe that
it will not receive payment on such date. Payments by participants to
beneficial owners will be governed by standing instructions and
customary practices, as is the case with securities held for the
accounts of customers in bearer form or registered in "street name,"
and will be the responsibility of such participant and not of DTC, the
trustee for such securities, or us, subject to any statutory or
regulatory requirements as may be in effect from time to time. Payment
of principal, interest and premium, if any, on any of the
aforementioned securities represented by global securities to DTC is
the responsibility of the appropriate trustee and us. Disbursement of
such payments to direct participants shall be the responsibility of
DTC, and disbursement of such payments to the beneficial owners shall
be the responsibility of the participants.
The information in this section concerning DTC and DTC's
book-entry system has been obtained from sources, including DTC, that
we believe to be reliable, but we take no responsibility for the
accuracy thereof.
The underwriters, dealers or agents of any of the securities
may be direct participants of DTC.
NONE OF THE TRUSTEES, US OR ANY AGENT FOR PAYMENT ON OR
REGISTRATION OF TRANSFER OR EXCHANGE OF ANY GLOBAL SECURITY WILL HAVE
ANY RESPONSIBILITY OR LIABILITY FOR ANY ASPECT OF THE RECORDS RELATING
TO OR PAYMENTS MADE ON ACCOUNT OF BENEFICIAL INTERESTS IN SUCH GLOBAL
SECURITY OR FOR MAINTAINING, SUPERVISING OR REVIEWING ANY RECORDS
RELATING TO SUCH BENEFICIAL INTERESTS.
PLAN OF DISTRIBUTION
We may sell the securities:
* through underwriters or dealers;
* directly;
* through agents; or
* through any combination of the above.
The applicable prospectus supplement will set forth the
terms under which the securities are offered, including the name or
names of any underwriters, the purchase price of the securities and
the proceeds to us from the sale, any underwriting discounts and other
items constituting underwriters' compensation, any initial offering
price and any discounts, commissions or concessions allowed or
reallowed or paid to dealers.
Any initial offering price and any discounts, concessions or
commissions allowed or reallowed or paid to dealers may be changed
from time to time.
If underwriters are used in an offering, the securities will
be acquired by the underwriters for their own account and may be
resold from time to time in one or more transactions, including
negotiated transactions, at a fixed public offering price or at
varying prices determined at the time of sale. The securities may be
offered to the public either through underwriting syndicates
represented by one or more managing underwriters or directly by one
42
or more of those firms. The specific managing underwriter or
underwriters, if any, will be named in the prospectus supplement
relating to the particular securities together with the members of the
underwriting syndicate, if any. Unless otherwise set forth in the
applicable prospectus supplement, the obligations of the underwriters
to purchase the particular securities will be subject to certain
conditions precedent and the underwriters will be obligated to
purchase all of the securities being offered if any are purchased.
We may sell the securities directly or through agents we
designate from time to time. The applicable prospectus supplement will
set forth the name of any agent involved in the offer or sale of the
securities in respect of which such prospectus supplement is delivered
and any commissions payable by us to such agent. Unless otherwise
indicated in the applicable prospectus supplement, any agent will be
acting on a best efforts basis for the period of its appointment.
Any underwriters utilized may engage in stabilizing
transactions and syndicate covering transactions in accordance with
Rule 104 of Regulation M under the Securities Exchange Act of 1934.
Stabilizing transactions permit bids to purchase the underlying
security so long as the stabilizing bids do not exceed a specified
maximum. Syndicate covering transactions involve purchases of the
particular offered securities in the open market after the
distribution has been completed in order to cover syndicate short
positions. These stabilizing transactions and syndicate covering
transactions may cause the price of the offered securities to be
higher than it would otherwise be in the absence of such transactions.
Any underwriters, dealers or agents participating in the
distribution of the securities may be deemed to be underwriters and
any discounts or commissions received by them on the sale or resale of
the securities may be deemed to be underwriting discounts and
commissions under the Securities Act. Agents, dealers and underwriters
may be entitled, under agreements entered into with us, to
indemnification by us against certain liabilities, including
liabilities under the Securities Act, and to contribution with respect
to payments which the agents, dealers or underwriters may be required
to make in respect of these liabilities. Agents, dealers and
underwriters may engage in transactions with or perform services for
us in the ordinary course of business.
Unless otherwise specified in a prospectus supplement,
except for our common stock, which is listed on the New York Stock
Exchange, the securities will not be listed on a national securities
exchange. No assurance can be given that any broker-dealer will make a
market in any series of the securities, and, in any event, no
assurance can be given as to the liquidity of the trading market for
any of the securities. The prospectus supplement will state, if known,
whether or not any broker-dealer intends to make a market in the
securities. If no such determination has been made, the prospectus
supplement will so state.
LEGAL MATTERS
Legal matters with respect to the securities offered under
this prospectus will be passed upon for us by Jeanie Sell Latz, Esq.,
Senior Vice President - Corporate Services and Secretary, and for the
underwriters, dealers, purchasers, or agents by Dewey Ballantine LLP,
1301 Avenue of the Americas, New York, New York 10019-6092. Dewey
Ballantine LLP will rely for purposes of their opinions upon the
opinion of Ms. Latz as to matters of Missouri law. At December 31,
2001, Ms. Latz owned beneficially 44,543 shares of the Company's
common stock, including option grants and shares which may be acquired
at a later date based on corporate and Ms. Latz's individual
performance. Dewey Ballantine LLP has performed, and may perform in
the future, legal services for the Company.
43
The descriptions of the securities we may offer that are
contained in this prospectus, as to the matters of law and legal
conclusions, have been prepared under the supervision of and review
by, and are made on the authority of Ms. Latz, who has given her
opinion that such statements as to such matters and conclusions are
correct.
EXPERTS
The consolidated financial statements incorporated in this
Prospectus by reference to the Annual Report on Form 10-K of Great
Plains Energy Incorporated for the year ended December 31, 2001,
except as they relate to DTI Holdings, Inc. and Subsidiaries (Debtors-
in-Possession), have been audited by PricewaterhouseCoopers LLP,
independent accountants, whose report thereon appears in the Form 10-
K. The report of PricewaterhouseCoopers LLP referred to above,
insofar as it relates to the amounts included for DTI Holdings, Inc.
and Subsidiaries, is based solely on the report of Deloitte & Touche
LLP. The financial statements of DTI Holdings, Inc. and Subsidiaries
(Debtors-in-Possession) (not presented separately or incorporated by
reference herein) have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their report (which expresses an
unqualified opinion and includes explanatory paragraphs referring to
DTI Holdings, Inc. and Subsidiaries' filing for reorganization under
Chapter 11 of the Federal Bankruptcy Code, substantial doubt about DTI
Holdings, Inc. and Subsidiaries' ability to continue as a going
concern and an impairment charge recorded by DTI Holdings, Inc. and
Subsidiaries) which also appears in the Form 10-K. The consolidated
financial statements of Great Plains Energy Incorporated referred to
above have been incorporated in this Prospectus in reliance on the
reports of such firms, given on their authority as experts in auditing
and accounting.
44
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Expenses payable by Registrant for the sale of the
Securities, other than underwriting discount and commissions, are
estimated as follows:
Securities and Exchange $ 27,600.00
Commission registration fee
Printing of registration 40,000.00
statement, prospectus, bonds,
etc.
Services of accountants 100,000.00
Fees and expenses of trustees 50,000.00
Rating agency fees 150,000.00
Miscellaneous 132,400.00
-----------
Total $500,000.00
_______________
Item 15. Indemnification of Directors and Officers.
RSMo Section 351.355 (2001) provides as follows:
1. A corporation created under the laws of this state may
indemnify any person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative,
other than an action by or in the right of the corporation, by reason
of the fact that he or she is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
against expenses, including attorneys' fees, judgements, fines and
amounts paid in settlement actually and reasonably incurred by him or
her in connection with such action, suit, or proceeding if he or she
acted in good faith and in a manner he or she reasonably believed to
be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had no reasonable
cause to believe his or her conduct was unlawful. The termination of
any action, suit, or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall
not, of itself, create a presumption that the person did not act in
good faith and in an manner which he or she reasonably believed to be
in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had reasonable cause to
believe that his or her conduct was unlawful.
2. The corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the act that he or she is
or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses, including
attorneys' fees, and amounts paid in settlement actually and
reasonably incurred by him in connection with the defense or
settlement of the action or suit if he or she acted in good faith and
in a manner he or she reasonably believed to be in or not opposed to
the best interests of the corporation; except that no indemnification
shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable for negligence or
misconduct in the performance
45
of his or her duty to the corporation unless and only to the extent
that the court in which the action or suit was brought determines upon
application that, despite the adjudication of liability and in view of
all the circumstances of the case, the person is fairly and reasonably
entitled to indemnity for such expenses which the court shall deem
proper.
3. Except as otherwise provided in the Articles of
incorporation or the bylaws, to the extent that a director, officer,
employee or agent of the corporation has been successful on the merits
or otherwise in defense of any action, suit, or proceeding referred to
in subsections 1 and 2 of this section, or in defense of any claim,
issue or matter therein, he or she shall be indemnified against
expenses, including attorneys' fees, actually and reasonably incurred
by him or her in connection with the action, suit or proceeding.
4. Any indemnification under subsections 1 and 2 of this
section, unless ordered by a court, shall be made by the corporation
only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper
in the circumstances because he or she has met the applicable standard
of conduct set forth in this section. The determination shall be made
by the board of directors by a majority vote of a quorum consisting of
directors who were not parties to the action, suit, or proceeding, or
if such a quorum is not obtainable, or even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in a
written opinion, or by the shareholders.
5. Expenses incurred in defending a civil or criminal
action, suit or proceeding may be paid by the corporation in advance
of the final disposition of the action, suit, or proceeding as
authorized by the board of directors in the specific case upon receipt
of an undertaking by or on behalf of the director, officer, employee
or agent to repay such amount unless it shall ultimately be determined
that he or she is entitled to be indemnified by the corporation as
authorized in this section.
6. The indemnification provided by this section shall be
deemed exclusive of any other rights to which those seeking
indemnification may be entitled under the Articles of Incorporation or
bylaws or any agreement, vote of shareholders or disinterested
directors or otherwise, both as to action in his official capacity and
as to action in another capacity while holding such office, and shall
continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
7. A corporation created under the laws of this state shall
have the power to give any further indemnity, in addition to the
indemnity authorized or contemplated under other subsections of this
section, including subsection 6, to any person who is or was a
director, officer, employee or agent, or to any person who is or was
serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, provided such further indemnity is either
(i) authorized, directed, or provided for in the Articles of
Incorporation of the corporation or any duly adopted amendment thereof
or (ii) is authorized, directed, or provided for in any bylaw or
agreement of the corporation which has been adopted by a vote of the
shareholders of the corporation, and provided further that no such
indemnity shall indemnify any person from or on account of such
person's conduct which was finally adjudged to have been knowingly
fraudulent, deliberately dishonest or willful misconduct. Nothing in
this subsection shall be deemed to limit the power of the corporation
under subsection 6 of this section to enact bylaws or to enter into
agreements without shareholder adoption of the same.
46
8. The corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not
the corporation would have the power to indemnify him against such
liability under the provisions of this section.
9. Any provision of this chapter to the contrary
notwithstanding, the provisions of this section shall apply to all
existing and new domestic corporations, including but not limited to
banks, trust companies, insurance companies, building and loan
associations, savings bank and safe deposit companies, mortgage loan
companies, corporations formed for benevolent, religious, scientific
or educational purposes and nonprofit corporations.
10. For the purpose of this section, references to "the
corporation" include all constituent corporations absorbed in a
consolidation or merger as well as the resulting or surviving
corporation so that any person who is or was a director, officer
employee or agent of such a constituent corporation or is or was
serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise shall stand in the same position
under the provisions of this section with respect to the resulting or
surviving corporation as he would if he or she had served the
resulting or surviving corporation in the same capacity.
11. For purposes of this section, the term "other
enterprise" shall include employee benefit plans; the term "fines"
shall include any excise taxes assessed on a person with respect to an
employee benefit plan; and the term "serving at the request of the
corporation" shall include any service as a director, officer,
employee, or agent of the corporation which imposes duties on, or
involves services by, such director, officer, employee, or agent with
respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have
acted in a manner "not opposed to the best interests of the
corporation" as referred to in this section.
The officers and directors of the Company have entered into
indemnification agreements with the Company indemnifying such officers
and directors to the extent allowed under the above RSMo Section
351.355 (2001).
Article XIII of the Restated Articles of Consolidation of the Company
provides as follows:
ARTICLE THIRTEENTH. (a) Right to Indemnification. Each
person who was or is made a party or is threatened to be made a party
to any action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he or she
is or was a director or officer of the Company or is or was an
employee of the Company acting within the scope and course of his or
her employment or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including
service with respect to employee benefit plans, shall be indemnified
and held harmless by the Company to the fullest extent authorized by
The Missouri General and Business Corporation Law, as the same exists
or may hereafter be amended, against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid to or to be paid in settlement) actually
and reasonably incurred by such person in connection therewith. The
Company may in its discretion by action of its Board of Directors
provide indemnification to agents of the Company
47
as provided for in this ARTICLE THIRTEENTH. Such indemnification
shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of his or
her heirs, executors and administrators.
(b) Rights Not Exclusive. The indemnification and other
rights provided by this ARTICLE THIRTEENTH shall not be deemed
exclusive of any other rights to which a person may be entitled under
any applicable law, By-laws of the Company, agreement, vote of
shareholders or disinterested directors or otherwise, both as to
action in such person's official capacity and as to action in any
other capacity while holding the office of director or officer, and
the Company is hereby expressly authorized by the shareholders of the
Company to enter into agreements with its directors and officers which
provide greater indemnification rights than that generally provided by
The Missouri General and Business Corporation Law; provided, however,
that no such further indemnity shall indemnify any person from or on
account of such director's or officer's conduct which was finally
adjudged to have been knowingly fraudulent, deliberately dishonest or
willful misconduct. Any such agreement providing for further
indemnity entered into pursuant to this ARTICLE THIRTEENTH after the
date of approval of this ARTICLE THIRTEENTH by the Company's
shareholders need not be further approved by the shareholders of the
Company in order to be fully effective and enforceable.
(c) Insurance. The Company may purchase and maintain
insurance on behalf of any person who was or is a director, officer,
employee or agent of the Company, or was or is serving at the request
of the Company as a director, officer, employee or agent of another
company, partnership, joint venture, trust or other enterprise against
any liability asserted against or incurred by such person in any such
capacity, or arising out of his or her status as such, whether or not
the Company would have the power to indemnify such person against such
liability under the provisions of this ARTICLE THIRTEENTH.
(d) Amendment. This ARTICLE THIRTEENTH may be hereafter
amended or repealed; however, no amendment or repeal shall reduce,
terminate or otherwise adversely affect the right of a person entitled
to obtain indemnification or an advance of expenses with respect to an
action, suit or proceeding that pertains to or arises out of actions
or omissions that occur prior to the later of (a) the effective date
of such amendment or repeal; (b) the expiration date of such person's
then current term of office with, or service for, the Company
(provided such person has a stated term of office or service and
completes such term); or (c) the effective date such person resigns
his or her office or terminates his or her service (provided such
person has a stated term of office or service but resigns prior to the
expiration of such term).
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended (the "Act") may be permitted to
directors, officers and controlling persons of Registrant pursuant to
the foregoing provisions, or otherwise, 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
Registrant of expenses incurred or paid by a director, officer or
controlling person of Registrant in the successful defense of any
action, suit or proceeding) is asserted against Registrant by such
director, officer or controlling person in connection with the
securities being registered, 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.
48
Item 16. List of Exhibits.
Exhibit
Number Description of Exhibit
- ------- ---------------------------------------------------------
+1.a. Form of Underwriting Agreement for debt securities.
+1.b. Form of Underwriting Agreement for trust preferred
securities.
+1.c. Form of Underwriting Agreement for common stock.
+1.d. Form of Underwriting Agreement for stock purchase
units
**4.a. Articles of Incorporation of the Company.
**4.b. By-laws of the Company.
*4.c. Form of Indenture of the Company for senior debt
securities.
+4.d. Form of supplemental indenture or other instrument
establishing the issuance of one or more series of
senior debt securities (including the form of senior
debt security).
*4.e. Form of Indenture of the Company for subordinated
debt securities.
+4.f. Form of supplemental indenture or other instrument
establishing the issuance of one or more series of
subordinated debt securities (including the form of
subordinated debt security).
*4.g. Form of Guarantee Agreement of the Company.
*4.h. Form of Certificate of Trust.
*4.i. Form of Trust Agreement.
*4.j. Form of Amended and Restated Trust Agreement
(including the form of trust preferred security).
+4.k. Form of Stock Purchase Contract Agreement.
+4.l. Form of Pledge Agreement.
+4.m. Form of Warrant Agreement (including the form of
warrant).
*5 Opinion of Jeanie Sell Latz, Esq., Senior Vice
President - Corporate Services and Secretary of the
Company, regarding the legality of the securities.
*12 Schedule of computation of ratio of earnings to
fixed charges for the years ended December 31, 2001,
2000, 1999, 1998, and 1997
*23.a. Consent of PricewaterhouseCoopers LLP.
*23.b. Consent of Deloitte & Touche LLP.
49
*23.c. Consent of Jeanie Sell Latz, Esq., Senior Vice
President - Corporate Services and Secretary of the
Company (included in Exhibit 5.a.).
24 Powers of Attorney.
++25.a. Form T-1 statement of eligibility of the trustee for
the senior debt securities.
++25.b. Form T-1 statement of eligibility of the trustee for
the subordinated debt securities.
++25.c. Form T-1 statement of eligibility of the trustee for
the guarantees for the benefit of the holders of the
trust preferred securities.
++25.d. Form T-1 statement of eligibility of the trustee for
the trust preferred securities.
______________________________________________
* Filed herewith.
** Incorporated by reference herein as indicated.
+ To be filed by amendment of pursuant to a report to be filed
pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 if applicable.
++ To be filed by amendment or pursuant to Trust Indenture Act
Section 305(b)(2) if applicable.
Item 17. Undertakings.
(a) 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; (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) if,
in the aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in the
effective registration statement; and (iii) to include any
material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any
material change to such information in the Registration
Statement; provided, however, that paragraphs (1)(i) and (1)(ii)
do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by
Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act 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
50
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; and
(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.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each
filing of Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act that is incorporated
by reference in this 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.
(c) See the last paragraph of Item 15.
(d) The undersigned Registrant hereby undertakes that,
(1) for purposes of determining any liability under the
Securities Act, the information omitted from the form of
prospectus filed as part of this Registration Statement in
reliance upon Rule 430A and contained in a form of prospectus
filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part
of this Registration Statement as of the time it was declared
effective, and
(2) for the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains
a form of prospectus 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.
51
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant 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 or amendment thereto to be signed
on its behalf by the undersigned, thereunto duly authorized, in the
City of Kansas City, State of Missouri, on the 29th day of April
2002.
GREAT PLAINS ENERGY INCORPORATED
By: /S/BERNARD J. BEAUDOIN
(Bernard J. Beaudoin)
Chairman of the Board, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement or amendment has been signed below by the
following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
- ---------------------- -------------------------- ---------------
/S/BERNARD J. BEAUDOIN Chairman of the Board, )
(Bernard J. Beaudoin) President and Chief )
Executive Officer )
(Principal Executive )
Officer) )
)
/S/ANDREA F. BIELSKER Vice President-Finance, )
(Andrea F. Bielsker) Chief Financial Officer )
and Treasurer )
(Principal Financial )
Officer) )
)
/S/NEIL ROADMAN Controller )
(Neil Roadman) (Principal Accounting )
Officer) )
)
)
David L. Bodde* Director )
(David L. Bodde) )
)
)
Mark A. Ernst* Director ) April 29, 2002
(Mark A. Ernst) )
)
William K. Hall* Director )
(William K. Hall) )
)
)
Luis A. Jimenez* Director )
(Luis A. Jimenez) )
)
)
William C. Nelson* Director )
(William C. Nelson) )
)
LINDA HOOD TALBOTT* Director )
(Linda Hood Talbott) )
)
)
Robert H. West* Director )
(Robert H. West) )
*By: /s/Bernard J. Beaudoin
(Bernard J. Beaudoin)
Attorney-in-fact
52
INDEX TO EXHIBITS
Exhibit
Number Description of Exhibit
- ------- ---------------------------------------------------------
+1.a. Form of Underwriting Agreement for debt
securities.
+1.b. Form of Underwriting Agreement for trust
preferred securities.
+1.c. Form of Underwriting Agreement for common stock.
+1.d. Form of Underwriting Agreement for stock
purchase units
**4.a. Articles of Incorporation of the Company.
**4.b. By-laws of the Company.
*4.c. Form of Indenture of the Company for senior debt
securities.
+4.d. Form of supplemental indenture or other
instrument establishing the issuance of one or
more series of senior debt securities (including
the form of senior debt security).
*4.e. Form of Indenture of the Company for
subordinated debt securities.
+4.f. Form of supplemental indenture or other
instrument establishing the issuance of one or
more series of subordinated debt securities
(including the form of subordinated debt
security).
*4.g. Form of Guarantee Agreement of the Company.
*4.h. Form of Certificate of Trust.
*4.i. Form of Trust Agreement.
*4.j. Form of Amended and Restated Trust Agreement
(including the form of trust preferred
security).
+4.k. Form of Stock Purchase Contract Agreement.
+4.l. Form of Pledge Agreement.
+4.m. Form of Warrant Agreement (including the form of
warrant).
*5 Opinion of Jeanie Sell Latz, Esq., Senior Vice
President - Corporate Services and Secretary of
the Company, regarding the legality of the
securities.
*12 Schedule of computation of ratio of earnings to
fixed charges for the years ended December 31,
2001, 2000, 1999, 1998, and 1997
*23.a. Consent of PricewaterhouseCoopers LLP.
*23.b. Consent of Deloitte & Touche LLP.
*23.c. Consent of Jeanie Sell Latz, Esq., Senior Vice
President - Corporate Services and Secretary of
the Company (included in Exhibit 5.a.).
53
*24 Powers of Attorney.
++25.a. Form T-1 statement of eligibility of the trustee
for the senior debt securities.
++25.b. Form T-1 statement of eligibility of the trustee
for the subordinated debt securities.
++25.c. Form T-1 statement of eligibility of the trustee
for the guarantees for the benefit of the
holders of the trust preferred securities.
++25.d. Form T-1 statement of eligibility of the trustee
for the trust preferred securities.
______________________________________________
* Filed herewith.
** Incorporated by reference herein as indicated.
+ To be filed by amendment of pursuant to a report to be filed
pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 if applicable.
++ To be filed by amendment or pursuant to Trust Indenture Act
Section 305(b)(2) if applicable.
54
FORM OF INDENTURE FOR SENIOR DEBT SECURITIES
EXHIBIT 4.c.
================================================================
GREAT PLAINS ENERGY INCORPORATED
AND
THE BANK OF NEW YORK,
Trustee
-----------------
FORM OF INDENTURE
Dated as of _______, 200_
================================================================
i
CROSS REFERENCE SHEET SHOWING THE LOCATION IN THE INDENTURE OF
THE PROVISIONS INSERTED CORRELATIVE TO SECTIONS 310 THROUGH
318(a), INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939
Indenture
Section of Act Section
-------------- ---------
310(a)(1) . . . . . . . . . . . . . . . 9.09
(a)(2) . . . . . . . . . . . . . . . 9.09
(a)(3) . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . Not Applicable
(a)(5) . . . . . . . . . . . . . . . 9.09
(b) . . . . . . . . . . . . . . . 9.08
(c) . . . . . . . . . . . . . . . Not Applicable
311(a) . . . . . . . . . . . . . . . 9.14
(b) . . . . . . . . . . . . . . . 9.14
(c) . . . . . . . . . . . . . . . Not Applicable
312(a) . . . . . . . . . . . . . . . 7.01 and 7.02(a)
(b) . . . . . . . . . . . . . . . 7.02(b)
(c) . . . . . . . . . . . . . . . 7.02(c)
313(a) . . . . . . . . . . . . . . . 7.04(a)
(b) . . . . . . . . . . . . . . . 7.04(b)
(c) . . . . . . . . . . . . . . . 7.04(d)
(d) . . . . . . . . . . . . . . . 7.04(c)
314(a) . . . . . . . . . . . . . . . 7.03 and 6.06
(b) . . . . . . . . . . . . . . . 6.05
(c)(1) . . . . . . . . . . . . . . . 1.03 and 15.05
(c)(2) . . . . . . . . . . . . . . . 1.03 and 15.05
(c)(3) . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . 1.03 and 4.06
(e) . . . . . . . . . . . . . . . 15.05(b)
(f) . . . . . . . . . . . . . . . Not Applicable
315(a) . . . . . . . . . . . . . . . 9.01
(b) . . . . . . . . . . . . . . . 8.08
(c) . . . . . . . . . . . . . . . 9.01(a)
(d) . . . . . . . . . . . . . . . 9.01(b)
(e) . . . . . . . . . . . . . . . 8.09
316(a) . . . . . . . . . . . . . . . 8.07 and 10.04
(b) . . . . . . . . . . . . . . . 8.04(b) and 13.02
(c) . . . . . . . . . . . . . . . 10.06
317(a)(1) . . . . . . . . . . . . . . . 8.02(b)
(a)(2) . . . . . . . . . . . . . . . 8.02(c)
(b) . . . . . . . . . . . . . . . 5.02 and 6.04
318(a) . . . . . . . . . . . . . . . 15.07
- -------------------
NOTE: This Cross Reference Sheet is not, for any purpose, deemed
to be a part of the Indenture.
ii
TABLE OF CONTENTS*
PAGE
PARTIES 1
RECITALS 1
ARTICLE ONE
DEFINITIONS
SECTION 1.01 General 1
SECTION 1.02 Trust Indenture Act 2
SECTION 1.03 Definitions 2
ARTICLE TWO
FORM, ISSUE, EXECUTION, REGISTRATION, AND
EXCHANGE OF NOTES
SECTION 2.01 Forms Generally 5
SECTION 2.02 Form of Trustee's Certificate of 6
Authentication
SECTION 2.03 Amount Unlimited 6
SECTION 2.04 Denominations, Dates, Interest Payment and 6
Record Dates
SECTION 2.05 Execution, Authentication, Delivery, and 7
Dating
SECTION 2.06 Exchange and Registration of Transfer of 10
Notes
SECTION 2.07 Mutilated, Destroyed, Lost or Stolen Notes 10
SECTION 2.08 Temporary Notes 11
SECTION 2.09 Cancellation of Notes Paid, Etc. 11
SECTION 2.10 Interest Rights Preserved 12
SECTION 2.11 Special Record Date 12
SECTION 2.12 Payment of Notes 12
SECTION 2.13 Notes Issuable in the Form of a Global Note 13
SECTION 2.14 CUSIP and ISIN Numbers 15
SECTION 2.15 Extension of Interest Payment Periods 15
ARTICLE THREE
REDEMPTION OF NOTES
SECTION 3.01 Applicability of Article 15
SECTION 3.02 Notice of Redemption; Selection of Notes 15
SECTION 3.03 Payment of Notes on Redemption; Deposit of 16
Redemption Price.
ARTICLE FOUR
SINKING FUNDS
SECTION 4.01 Applicability of Article 17
SECTION 4.02. Satisfaction of Sinking Fund Payments with 17
Notes
SECTION 4.03. Redemption of Notes for Sinking Funds 18
* The Table of Contents is not part of the Indenture.
iii
PAGE
ARTICLE FIVE
SATISFACTION AND DISCHARGE; UNCLAIMED MONEYS
SECTION 5.01 Satisfaction and Discharge of Indenture 18
SECTION 5.02 Application of Trust Funds; Indemnification 19
SECTION 5.03 Legal Defeasance 19
SECTION 5.04 Covenant Defeasance 21
SECTION 5.05 Repayment to Company 22
ARTICLE SIX
PARTICULAR COVENANTS OF THE COMPANY
SECTION 6.01 Payment of Principal and Interest 22
SECTION 6.02 Offices for Payments, Etc. 22
SECTION 6.03 Appointment to Fill a Vacancy in Office of 23
Trustee
SECTION 6.04 Provision as to Paying Agent 23
SECTION 6.05 Corporate Existence 24
SECTION 6.06 Certificates and Notice to Trustee 24
ARTICLE SEVEN
NOTEHOLDER LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
SECTION 7.01 Company to Furnish Noteholder Lists 24
SECTION 7.02 Preservation and Disclosure of Noteholder 24
Lists
SECTION 7.03 Reports by the Company 25
SECTION 7.04 Reports by the Trustee 26
ARTICLE EIGHT
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS ON
EVENTS OF DEFAULT
SECTION 8.01 Events of Default 27
SECTION 8.02 Collection of Indebtedness by Trustee; 29
Trustee May Prove Debt
SECTION 8.03 Application of Proceeds 30
SECTION 8.04 Limitations on Suits by Noteholders 31
SECTION 8.05 Suits for Enforcement 31
SECTION 8.06 Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default
SECTION 8.07 Direction of Proceedings and Waiver of 32
Defaults by Majority of Noteholders
SECTION 8.08 Notice of Default 32
SECTION 8.09 Undertaking to Pay Costs 33
SECTION 8.10 Restoration of Rights on Abandonment of 33
Proceedings
SECTION 8.11 Waiver of Usury, Stay, or Extension Laws 33
iv
PAGE
ARTICLE NINE
CONCERNING THE TRUSTEE
SECTION 9.01 Duties and Responsibilities of Trustee 34
SECTION 9.02 Reliance on Documents, Opinions, Etc. 35
SECTION 9.03 No Responsibility for Recitals, etc. 36
SECTION 9.04 Trustee, Authenticating Agent, Paying Agent 36
or Registrar May Own Notes
SECTION 9.05 Moneys to be Held in Trust 36
SECTION 9.06 Compensation and Expenses of Trustee 36
SECTION 9.07 Officers' Certificate as Evidence 36
SECTION 9.08 Conflicting Interest of Trustee
37
SECTION 9.09 Existence and Eligibility of Trustee
37
SECTION 9.10 Resignation or Removal of Trustee
37
SECTION 9.11 Appointment of Successor Trustee
38
SECTION 9.12 Acceptance by Successor Trustee
38
SECTION 9.13 Succession by Merger, Etc. 39
SECTION 9.14 Limitations on Rights of Trustee as a 39
Creditor
SECTION 9.15 Authenticating Agent 39
ARTICLE TEN
CONCERNING THE NOTEHOLDERS
SECTION 10.01 Action Taken by Noteholders 40
SECTION 10.02 Proof of Execution by Noteholders 40
SECTION 10.03 Persons Deemed Absolute Owners 40
SECTION 10.04 Company-Owned Notes Disregarded 40
SECTION 10.05 Revocation of Consents; Future Holders Bound 41
SECTION 10.06 Record Date for Noteholder Acts 41
ARTICLE ELEVEN
NOTEHOLDERS' MEETING
SECTION 11.01 Purposes of Meeting 41
SECTION 11.02 Call of Meetings by Trustee 42
SECTION 11.03 Call of Meetings by Company or Noteholders 42
SECTION 11.04 Qualifications for Voting 42
SECTION 11.05 Regulations 42
SECTION 11.06 Voting 43
SECTION 11.07 Rights of Trustee or Noteholders Not Delayed 43
ARTICLE TWELVE
CONSOLIDATION, MERGER, SALE, TRANSFER OR
CONVEYANCE
SECTION 12.01 Company May Consolidate, Etc. Only on 44
Certain Terms
SECTION 12.02 Successor Corporation Substituted 44
v
PAGE
ARTICLE THIRTEEN
SUPPLEMENTAL INDENTURES
SECTION 13.01 Supplemental Indentures Without Consent of 44
Noteholders
SECTION 13.02 Supplemental Indentures With Consent of 45
Noteholders
SECTION 13.03 Compliance with Trust Indenture Act; Effect
of Supplemental
SECTION 13.04 Notation on Notes 47
SECTION 13.05 Evidence of Compliance of Supplemental 47
Indenture to be Furnished Trustee
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS, AND DIRECTORS
SECTION 14.01 Indenture and Notes Solely Corporate 47
Obligations
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
SECTION 15.01 Provisions Binding on Company's Successors 47
SECTION 15.02 Official Acts by Successor Corporation 47
SECTION 15.03 Notices 47
SECTION 15.04 Governing Law 48
SECTION 15.05 Evidence of Compliance with Conditions 48
Precedent
SECTION 15.06 Business Days 49
SECTION 15.07 Trust Indenture Act to Control 49
SECTION 15.08 Table of Contents, Headings, Etc. 49
SECTION 15.09 Execution in Counterparts 49
SECTION 15.10 Manner of Mailing Notice to Noteholders 49
SECTION 15.11 Approval by Trustee of Counsel 50
TESTIMONIUM 51
SIGNATURES AND SEALS 51
ACKNOWLEDGMENTS 51
vi
THIS INDENTURE, dated as of __________, 200_, between GREAT
PLAINS ENERGY INCORPORATED, a corporation duly organized and
existing under the laws of the State of Missouri (the "COMPANY"),
and THE BANK OF NEW YORK, a New York banking
company, as trustee (the "TRUSTEE").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, for its lawful corporate purposes, the Company has
duly authorized the execution and delivery of this Indenture to
provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (the
"Notes"), to be issued in one or more series as in this Indenture
provided; and
WHEREAS, all acts and things necessary to make this
Indenture a valid agreement according to its terms have been done
and performed, and the execution of this Indenture and the issue
hereunder of the Notes have in all respects been duly authorized;
NOW THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which
the Notes are, and are to be authenticated, issued and delivered,
and in consideration of the premises, of the purchase and
acceptance of the Notes by the Holders thereof and of the sum of
one dollar duly paid to it by the Trustee at the execution of
this Indenture, the receipt whereof is hereby acknowledged, the
Company covenants and agrees with the Trustee for the equal and
proportionate benefit of the respective Holders from time to time
of the Notes or of any series thereof, as follows:
ARTICLE I
DEFINITIONS
Section 1.01 GENERAL.
(a) The terms defined in this Article I (whether or not
capitalized and except as herein otherwise expressly provided or
unless the context otherwise requires) for all purposes of this
Indenture and of any indenture supplemental hereto or Company
Order (as hereinafter defined) shall have the respective meanings
specified in this Article I.
(b) All accounting terms used herein and not expressly
defined herein shall have the meanings assigned to them in
accordance with generally accepted accounting principles in the
United States of America, and, except as otherwise herein
expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted in the United States of America at the date of such
computation; PROVIDED, that when two or more principles are so
generally accepted, it shall mean that set of principles
consistent with those in use by the Company.
1
Section 1.02 TRUST INDENTURE ACT.
(a) Whenever this Indenture refers to a provision of
the Trust Indenture Act of 1939 (the "TIA"), such provision is
incorporated by reference in and made a part of this Indenture.
(b) Unless otherwise indicated, all terms used in this
Indenture that are defined by the TIA, defined by the TIA by
reference to another statute or defined by a rule of the
Commission under the TIA shall have the meanings assigned to them
in the TIA or such statute or rule as in force on the date of
execution of this Indenture.
(c) The Company and the Trustee agree to comply with
the TIA notwithstanding any exemption that may be available
thereunder.
Section 1.03 DEFINITIONS. For purposes of this Indenture,
the following terms shall have the following meanings.
"AUTHENTICATING AGENT" shall mean any agent of the Trustee
which shall be appointed and acting pursuant to Section 9.15
hereof.
"AUTHORIZED AGENT" shall mean any agent of the Company
designated as such by an Officers' Certificate delivered to the
Trustee.
"BOARD OF DIRECTORS" shall mean the Board of Directors of
the Company or the Executive Committee of such Board or any other
duly authorized committee of such Board.
"BOARD RESOLUTION" shall mean a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"BUSINESS DAY" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday that is not a day on which banking
institutions or trust companies in the Borough of Manhattan, the
City and State of New York, the state of Missouri, or in the city
where the corporate trust office of the Trustee is located, are
obligated or authorized by law or executive order to close,
except as otherwise specified in a Company Order pursuant to
Section 2.05 hereof.
"COMMISSION" shall mean the United States Securities and
Exchange Commission, or if at any time hereafter the Commission
is not existing or performing the duties now assigned to it under
the TIA, then the body performing such duties.
"COMPANY" shall mean the corporation named as the "Company"
in the first paragraph of this Indenture, and its successors and
assigns permitted hereunder.
"COMPANY ORDER" shall mean a written order or certificate
signed in the name of the Company by one of the Chairman, the
President, any Vice President, the Treasurer or an Assistant
Treasurer of the Company, and delivered to the Trustee. At the
Company's option, a Company Order may take the form of a
supplemental indenture to this Indenture.
2
"CORPORATE TRUST OFFICE OF THE TRUSTEE", or other similar
term, shall mean the corporate trust office of the Trustee, at
which at any particular time its corporate trust business shall
be principally administered, which shall initially be 101 Barclay
Street, Floor 21 West, New York, New York 10286.
"DEBT" shall mean any outstanding funded obligations of the
Company for money borrowed, whether or not evidenced by notes,
debentures, bonds or other securities, reimbursement obligations
under letters of credit, or guarantees of any such obligations
issued by another Person.
"DEPOSITARY" shall mean, unless otherwise specified in a
Company Order pursuant to Section 2.05 hereof, The Depository
Trust Company, New York, New York ("DTC"), or any successor
thereto registered and qualified as a clearing agency under the
Securities Exchange Act of 1934, or other applicable statute or
regulation.
"EVENT OF DEFAULT" shall mean any event specified in Section
8.01 hereof, continued for the period of time, if any, and after
the giving of the notice, if any, therein designated.
"GLOBAL NOTE" shall mean a Note that, pursuant to Section
2.05 hereof, is delivered to the Depositary or pursuant to the
instructions of the Depositary and that shall be registered in
the name of the Depositary or its nominee.
"HOLDER", "HOLDER OF NOTES" or "NOTEHOLDER" shall mean any
Person in whose name at the time a particular Note is registered
on the books of the Trustee kept for that purpose in accordance
with the terms hereof.
"INDENTURE" shall mean this instrument as originally
executed or, if amended or supplemented as herein provided, as so
amended or supplemented, and shall include the terms and
provisions of a particular series of Notes established pursuant
to Section 2.05 hereof.
"INTEREST PAYMENT DATE", when used with respect to any Note,
shall mean (a) each date designated as such for the payment of
interest on such Note specified in a Company Order pursuant to
Section 2.05 hereof (provided that the first Interest Payment
Date for such Note, the Original Issue Date of which is after a
Regular Record Date but prior to the respective Interest Payment
Date, shall be the Interest Payment Date following the next
succeeding Regular Record Date), (b) a date of Maturity of such
Note and (c) only with respect to defaulted interest on such
Note, the date established by the Trustee for the payment of such
defaulted interest pursuant to Section 2.11 hereof.
"MATURITY," when used with respect to any Note, shall mean
the date on which the principal of such Note becomes due and
payable as therein or herein provided, whether at the Stated
Maturity thereof or by declaration of acceleration, redemption or
otherwise.
"NOTE" or "NOTES" has the meaning stated in the first
recital of this Indenture and more particularly means any note or
notes, as the case may be, authenticated and delivered under this
Indenture, including any Global Note.
"OFFICERS' CERTIFICATE" when used with respect to the
Company, shall mean a certificate signed by one of the Chairman,
the President, any Vice President, and by the Treasurer, any
Assistant Treasurer, or the Secretary or an Assistant Secretary
of the Company; provided, that no individual shall be entitled to
sign in more than one capacity.
3
"OPINION OF COUNSEL" shall mean an opinion in writing signed
by legal counsel, who may be an employee of the Company, meeting
the applicable requirements of Section 15.05 hereof. If the
Indenture requires the delivery of an Opinion of Counsel to the
Trustee, the text and substance of which has been previously
delivered to the Trustee, the Company may satisfy such
requirement by the delivery by the legal counsel that delivered
such previous Opinion of Counsel of a letter to the Trustee to
the effect that the Trustee may rely on such previous Opinion of
Counsel as if such Opinion of Counsel was dated and delivered the
date delivery of such Opinion of Counsel is required. Any Opinion
of Counsel may contain reasonable conditions and qualifications
satisfactory to the Trustee.
"ORIGINAL ISSUE DATE" shall mean for a Note, or portions
thereof, the date upon which it, or such portion, was issued by
the Company pursuant to this Indenture and authenticated by the
Trustee (other than in connection with a transfer, exchange or
substitution).
"OUTSTANDING", when used with reference to Notes, shall,
subject to Section 10.04 hereof, mean, as of any particular time,
all Notes authenticated and delivered by the Trustee under this
Indenture, except:
(a) Notes theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Notes, or portions thereof, for the payment or
redemption of which moneys in the necessary amount shall
have been deposited in trust with the Trustee or with any
paying agent (other than the Company), provided that if such
Notes are to be redeemed prior to the Stated Maturity
thereof, notice of such redemption shall have been given as
provided in Article III, or provisions satisfactory to the
Trustee shall have been made for giving such notice;
(c) Notes, or portions thereof, that have been paid and
discharged or are deemed to have been paid and discharged
pursuant to the provisions of this Indenture; and
(d) Notes in lieu of or in substitution for which other
Notes shall have been authenticated and delivered, or which
have been paid, pursuant to Section 2.07 hereof.
"PERIODIC OFFERING" means an offering of Notes of a series
from time to time the specific terms of which Notes, including
without limitation the rate or rates of interest, if any,
thereon, the Stated Maturity or Maturities thereof and the
redemption provisions, if any, with respect thereto, are to be
determined by the Company or its agents upon the issuance of such
Notes.
"PERSON" shall mean any individual, corporation, company
partnership, joint venture, limited liability company,
association, joint-stock company, trust, unincorporated
organization or government or any agent or political subdivision
thereof.
"PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY" shall mean 1201
Walnut, Kansas City, Missouri 64106, or such other place where
the main corporate offices of the Company are located as
designated in writing to the Trustee by an Authorized Agent.
"REGULAR RECORD DATE" shall mean, unless otherwise specified
in a Company Order pursuant to Section 2.05 hereof, for an
Interest Payment Date for a particular Note (except for an
Interest Payment Date with respect to defaulted interest on such
Note) (a) the fifteenth day
4
next preceding each Interest Payment Date (unless the Interest
Payment Date is the date of Maturity of such Note, in which
event, the Regular Record Date shall be as described in
clause (b) hereof) and (b) the date of Maturity of such Note.
"RESPONSIBLE OFFICER" or "RESPONSIBLE OFFICERS" when used
with respect to the Trustee shall mean one or more of the
following: any vice president, assistant vice president or any
assistant treasurer, or any other officer or assistant officer
of the Trustee customarily performing functions similar to
those performed by the persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter
is referred because of his or her knowledge of and familiarity
with the particular subject.
"SPECIAL RECORD DATE" shall mean, with respect to any Note,
the date established by the Trustee in connection with the
payment of defaulted interest on such Note pursuant to Section
2.11 hereof.
"STATED MATURITY" shall mean with respect to any Note, the
last date on which principal on such Note becomes due and payable
as therein or herein provided, other than by declaration of
acceleration or by redemption.
"SUBSIDIARY" shall mean, as to any Person, any corporation
or other entity of which at least a majority of the securities or
other ownership interest having ordinary voting power (absolutely
or contingently) for the election of directors or other Persons
performing similar functions are at the time owned directly or
indirectly by such Person.
"TRUSTEE" shall mean The Bank of New York and, subject to
Article IX, shall also include any successor Trustee.
"U.S. GOVERNMENT OBLIGATIONS" shall mean (i) direct non-
callable obligations of, or non-callable obligations guaranteed
as to timely payment of principal and interest by, the United
States of America or obligations of a person controlled or
supervised by and acting as an agency or instrumentality thereof
for the payment of which obligations or guarantee the full faith
and credit of the United States is pledged or (ii) certificates
or receipts representing direct ownership interests in
obligations or specified portions (such as principal or interest)
of obligations described in clause (i) above, which obligations
are held by a custodian in safekeeping in a manner satisfactory
to the Trustee.
ARTICLE II
FORM, ISSUE, EXECUTION, REGISTRATION AND
EXCHANGE OF NOTES
Section 2.01 FORMS GENERALLY.
(a) The Notes shall be in such form as shall be
established by a Company Order pursuant to Section 2.05(c) hereof
with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture,
and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as
may be required to comply with applicable rules of any securities
exchange or of the Depositary or with applicable law or as may,
consistently herewith, be determined by the officers executing
such Notes, as evidenced by their execution of such Notes.
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(b) The definitive Notes shall be typed, printed,
lithographed or engraved on steel engraved borders or may be
produced in any other manner, all as determined by the officers
executing such Notes, as evidenced by their execution of such
Notes.
Section 2.02 FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION. The Trustee's certificate of authentication on
all Notes shall be in substantially the following form:
Trustee's Certificate of Authentication
This Note is one of the Notes of the series herein
designated, described or provided for in the within-mentioned
Indenture.
The Bank of New York, as Trustee
By:
---------------------------
Authorized Signatory
Section 2.03 AMOUNT UNLIMITED. The aggregate principal
amount of Notes that may be authenticated and delivered under
this Indenture is unlimited, subject to compliance with the
provisions of this Indenture.
Section 2.04 DENOMINATIONS, DATES, INTEREST PAYMENT AND
RECORD DATES.
(a) The Notes of each series shall be issuable in
registered form without coupons in denominations of $1,000 and
integral multiples thereof or such other amount or amounts as may
be authorized by the Board of Directors or a Company Order
pursuant to a Board Resolution or in one or more indentures
supplemental hereto; provided, that the principal amount of a
Global Note shall not exceed $500,000,000 unless otherwise
permitted by the Depositary.
(b) Each Note shall be dated and issued as of the date
of its authentication by the Trustee, and shall bear an Original
Issue Date; each Note issued upon transfer, exchange or
substitution of a Note shall bear the Original Issue Date or
Dates of such transferred, exchanged or substituted Note, subject
to the provisions of Section 2.13(d) hereof.
(c) Each Note shall accrue interest from the later of
(1) its Original Issue Date or the date specified in such Note
and (2) the most recent date to which interest has been paid or
duly provided for with respect to such Note until the principal
of such Note is paid or made available for payment, and interest
on each Note shall be payable on each Interest Payment Date after
the Original Issue Date.
(d) Each Note shall mature on a Stated Maturity
specified in the Note. The principal amount of each outstanding
Note shall be payable on the Stated Maturity date specified
therein.
(e) Unless otherwise specified in a Company Order
pursuant to Section 2.05 hereof, interest on each of the Notes
shall be calculated on the basis of a 360-day year of twelve 30-
day months (and for any partial periods shall be calculated on
the basis of the number of days elapsed in a 360-day year of
twelve 30-day months) and shall be computed at a fixed rate until
the Stated Maturity of such Notes. The method of computing
interest on any Notes not
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bearing a fixed rate of interest shall be set forth in a
Company Order pursuant to Section 2.05 hereof. Unless otherwise
specified in a Company Order pursuant to Section 2.05 hereof,
principal, interest and premium on the Notes shall be payable
in the currency of the United States.
(f) Except as provided in the following sentence, the
Person in whose name any Note is registered at the close of
business on any Regular Record Date or Special Record Date with
respect to an Interest Payment Date for such Note shall be
entitled to receive the interest payable on such Interest Payment
Date notwithstanding the cancellation of such Note upon any
registration of transfer, exchange or substitution of such Note
subsequent to such Regular Record Date or Special Record Date and
prior to such Interest Payment Date. Any interest payable at
Maturity shall be paid to the Person to whom the principal of
such Note is payable.
(g) So long as the Trustee is the registrar and paying
agent, the Trustee shall, as soon as practicable but no later
than the Regular Record Date preceding each applicable Interest
Payment Date, provide to the Company a list of the principal,
interest and premium to be paid on Notes on such Interest Payment
Date. The Trustee shall assume responsibility for withholding
taxes on interest paid as required by law except with respect to
any Global Note.
Section 2.05 EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
(a) The Notes shall be executed on behalf of the
Company by one of its Chairman, President, or any Vice President
and by its Treasurer or an Assistant Treasurer or the Secretary
or an Assistant Secretary of the Company. The signature of any of
these officers on the Notes may be manual or facsimile.
Typographical and other minor errors or defects in any such
signature shall not affect the validity or enforceability of any
Note that has been duly authenticated and delivered by the
Trustee.
(b) Notes bearing the manual or facsimile signatures of
individuals who were at the time of execution the proper officers
of the Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior
to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
(c) At any time and from time to time after the
execution and delivery of this Indenture, the Company may deliver
Notes of any series executed by the Company to the Trustee for
authentication, together with or preceded by one or more Company
Orders for the authentication and delivery of such Notes, and the
Trustee in accordance with any such Company Order shall
authenticate and make available for delivery such Notes;
provided, however, that, with respect to Notes of a series
subject to a Periodic Offering, (A) such Company Order may be
delivered by the Company to the Trustee prior to the delivery to
the Trustee of such Notes for authentication and delivery, (B)
the Trustee shall authenticate and deliver Notes of such series
for original issue from time to time, in an aggregate principal
amount not exceeding the aggregate principal amount established
for such series, all pursuant to a further Company Order or
pursuant to such procedures acceptable to the Trustee as may
be specified from time to time by such further Company Order,
(C) the Stated Maturity or Maturities, Original Issue Date
or Dates, interest rate or rates and any other terms of
Notes of such series shall be determined by such further Company
Order or pursuant to such procedures and (D) if provided for in
such procedures, such Company Order may authorize authentication
and delivery pursuant to oral or electronic instructions from the
Company or its duly authorized agent or agents, which oral
instructions shall be promptly confirmed in writing. Such Company
Order shall specify the following with respect to each series of
Notes: (i) the
7
title of the Notes of such series (which shall distinguish the
Notes of such series from Notes of all other series) and any
limitations on the aggregate principal amount of the Notes to be
issued as part of such series, (ii) the Original Issue Date for
such series, (iii) the Stated Maturity of Notes of such series,
(iv) the interest rate or rates, or method of calculation of such
rate or rates, for such series and the date from which such interest
will accrue, (v) the terms, if any, regarding the optional or
mandatory redemption of such series, including redemption date or
dates of such series, if any, and the price or prices applicable
to such redemption, (vi) whether or not the Notes of such series
shall be issued in whole or in part in the form of a Global Note
and, if so, the Depositary for such Global Note if not DTC, (vii)
the form of the Notes of such series, (viii) the maximum annual
interest rate, if any, of the Notes permitted for such series,
(ix) the period or periods within which, the price or prices at
which and the terms and conditions upon which such series may be
repaid, in whole or in part, at the option of the Holder thereof,
(x) the establishment of any office or agency pursuant to Section
6.02 hereof, (xi) any Events of Default, in addition to those
specified in Section 8.01 hereof, with respect to the Notes
of such series, and any covenants of the Company for the benefit
of the Holders of the Notes of such series in addition to
those set forth in Articles VI and XII hereof, (xii) the
terms, if any, pursuant to which the Notes of such series may
be converted into or exchanged for shares of capital stock or
other securities of the Company, and (xiii) any other terms
of such series not inconsistent with this Indenture. With
respect to Notes of a series subject to a Periodic Offering,
such Company Order may provide general terms or parameters for
Notes of such series and provide either that the specific terms
of particular Notes of such series shall be specified in a
further Company Order or that such terms shall be determined by
the Company or its agents in accordance with such further Company
Order as contemplated by the proviso of the first sentence of
this Section 2.05(c). Prior to authenticating Notes of any
series, and in accepting the additional responsibilities under
this Indenture in relation to such Notes, the Trustee shall
receive from the Company the following at or before the issuance
of such series of Notes, and (subject to Section 9.01 hereof)
shall be fully protected in relying upon, unless and until such
documents have been superseded or revoked prior to such issuance:
(1) A Board Resolution authorizing such Company Order
or Orders and, if the form of Notes is established by a
Board Resolution or a Company Order pursuant to a Board
Resolution, a copy of such Board Resolution;
(2) At the option of the Company, either an Opinion of
Counsel or a letter addressed to the Trustee permitting
it to rely on an Opinion of Counsel, stating
substantially the following subject to customary
qualifications and exceptions:
(A) if the form of such Notes has been established
by or pursuant to a Board Resolution, a Company
Order pursuant to a Board Resolution, or in a
supplemental indenture as permitted by Section
2.01 hereof, that such form has been established
in conformity with this Indenture;
(B) that this Indenture has been duly authorized,
executed and delivered by the Company and
constitutes a valid and binding agreement of the
Company, enforceable against the Company in
accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium and other
similar laws relating to or affecting creditors'
rights generally, general equitable principles
(whether considered in a proceeding at law or in
equity) and by an implied covenant of
reasonableness, good faith and fair dealing;
8
(C) that this Indenture is qualified to the extent
necessary under the TIA or, if not so required,
that this Indenture is not required to be
qualified under the TIA;
(D) that such Notes have been duly authorized and
executed by the Company, and when authenticated by
the Trustee and issued by the Company in the
manner and subject to any conditions specified in
such Opinion of Counsel, will constitute valid and
binding obligations of the Company, enforceable
against the Company in accordance with their
respective terms, except as may be limited by
bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium and other similar laws
relating to or affecting creditors' rights
generally, general equitable principles (whether
considered in a proceeding at law or in equity)
and by an implied covenant of reasonableness, good
faith and fair dealing;
(E) that the issuance of such Notes will not
result in any default under this Indenture;
(F) that all consents or approvals of the
Commission (or any successor agency) under the
Public Utility Holding Company Act of 1935 and of
any other federal or state regulatory agency
required in connection with the Company's
execution and delivery of this Indenture and such
Notes have been obtained and are in full force and
effect (except that no statement need be made with
respect to state securities laws); and
(G) that all conditions that must be met by the
Company to issue Notes under this Indenture have
been met.
(3) An Officers' Certificate stating that (i) the
Company is not, and upon the authentication by the
Trustee of such Notes, will not be in default under any
of the terms or covenants contained in this Indenture
and (ii) all conditions that must be met by the Company
to issue Notes under this Indenture have been met.
(d) No Note shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there
appears on such Note a certificate of authentication
substantially in the form provided for herein executed by the
Trustee by the manual signature of an authorized officer, and
such certificate upon any Note shall be conclusive evidence, and
the only evidence, that such Note has been duly authenticated and
delivered hereunder and
is entitled to the benefits of this Indenture.
(e) If all Notes of a series are not to be
authenticated and issued at one time in connection with a
Periodic Offering, the Company shall not be required to deliver
the Company Order, Board Resolution, Officers' Certificate and
Opinion of Counsel (including any of the foregoing that would be
otherwise required pursuant to Section 15.05 hereof) described in
Section 2.05(c) hereof at or prior to the authentication of each
Note of such series, if such items are delivered at or prior to
the time of authentication of the first Note of such series to be
authenticated and issued.
9
Section 2.06 EXCHANGE AND REGISTRATION OF TRANSFER OF NOTES.
(a) Subject to Section 2.13 hereof, Notes of any series
may be exchanged for one or more new Notes of the same series of
any authorized denominations and of a like aggregate principal
amount, series and Stated Maturity and having the same terms and
Original Issue Date. Notes to be exchanged shall be surrendered
at any of the offices or agencies to be maintained pursuant to
Section 6.02 hereof, and the Trustee shall authenticate and
deliver in exchange therefor the Note or Notes of such series
which the Noteholder making the exchange shall be entitled to
receive.
(b) The Trustee shall keep, at one of said offices or
agencies, a register or registers in which, subject to such
reasonable regulations as it may prescribe, the Trustee shall
register or cause to be registered Notes and shall register or
cause to be registered the transfer of Notes as in this Article
II provided. Such register shall be in written form or in any
other form capable of being converted into written form within a
reasonable time. At all reasonable times, such register shall be
open for inspection by the Company. Upon due presentment for
registration of transfer of any Note at any such office or
agency, the Company shall execute and the Trustee shall register,
authenticate and deliver in the name of the transferee or
transferees one or more new Notes of any authorized denominations
and of a like aggregate principal amount, series and
Stated Maturity and having the same terms and Original Issue Date.
(c) All Notes presented for registration of transfer or
for exchange, redemption or payment shall be duly endorsed by, or
be accompanied by a written instrument or instruments of transfer
in form satisfactory to the Company and the Trustee and duly
executed by the Holder or the attorney in fact of such Holder
duly authorized in writing.
(d) No service charge shall be made for any exchange or
registration of transfer of Notes, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith.
(e) The Trustee shall not be required to exchange or
register the transfer of any Notes selected, called or being
called for redemption (including Notes, if any, redeemable at the
option of the Holder provided such Notes are then redeemable at
such Holder's option) except, in the case of any Note to be
redeemed in part, the portion thereof not to be so redeemed.
(f) If the principal amount, and applicable premium, of
part, but not all of a Global Note is paid, then upon surrender
to the Trustee of such Global Note, the Company shall execute,
and the Trustee shall authenticate, deliver and register, a
Global Note in an authorized denomination in aggregate principal
amount equal to, and having the same terms, Original Issue Date
and series as, the unpaid portion of such Global Note.
Section 2.07 MUTILATED, DESTROYED, LOST OR STOLEN NOTES.
(a) If any temporary or definitive Note shall become
mutilated or be destroyed, lost or stolen, the Company shall
execute, and upon its written request the Trustee shall
authenticate and deliver, a new Note of like form and principal
amount and having the same terms and Original Issue Date and
bearing a number not contemporaneously outstanding, in exchange
and substitution for the mutilated Note, or in lieu of and in
substitution for the Note so destroyed, lost or stolen. In
every case the applicant for a substituted Note shall furnish
to the Company, the Trustee and any paying agent or
Authenticating Agent such security or indemnity as may be
10
required by them to save each of them harmless, and, in every
case of destruction, loss or theft of a Note, the applicant shall
also furnish to the Company and to the Trustee evidence to their
satisfaction of the destruction, loss or theft of such Note and
of the ownership thereof.
(b) The Trustee shall authenticate any such substituted
Note and deliver the same upon the written request or
authorization of any officer of the Company. Upon the issuance of
any substituted Note, the Company may require the payment of a
sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses
connected therewith. If any Note which has matured, is about to
mature, has been redeemed or called for redemption shall become
mutilated or be destroyed, lost or stolen, the Company may,
instead of issuing a substituted Note, pay or authorize the
payment of the same (without surrender thereof except in the case
of a mutilated Note) if the applicant for such payment shall
furnish to the Company, the Trustee and any paying agent or
Authenticating Agent such security or indemnity as may be
required by them to save each of them harmless and, in case of
destruction, loss or theft, evidence satisfactory to the Company
and the Trustee of the destruction, loss or theft of such Note
and of the ownership thereof.
(c) Every substituted Note issued pursuant to this Section
2.07 by virtue of the fact that any Note is mutilated, destroyed,
lost or stolen shall constitute an additional contractual
obligation of the Company, whether or not such destroyed, lost or
stolen Note shall be found at any time, and shall be entitled to
all the benefits of this Indenture equally and proportionately
with any and all other Notes duly issued hereunder. All Notes
shall be held and owned upon the express condition that, to the
extent permitted by law, the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Notes and shall preclude to the full
extent permitted by applicable law any and all other rights or
remedies with respect to the replacement or payment of negotiable
instruments or other securities without
their surrender.
Section 2.08 TEMPORARY NOTES. Pending the preparation of
definitive Notes of any series, the Company may execute and the
Trustee shall authenticate and deliver temporary Notes (printed,
lithographed or otherwise reproduced). Temporary Notes shall be
issuable in any authorized denomination and substantially in the
form of the definitive Notes but with such omissions, insertions
and variations as may be appropriate for temporary Notes, all as
may be determined by the Company. Every such temporary Note shall
be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with the same effect, as the
definitive Notes. Without unreasonable delay the Company shall
execute and shall deliver to the Trustee definitive Notes of such
series and thereupon any or all temporary Notes of such series
shall be surrendered in exchange therefor at the corporate trust
office of the Trustee, and the Trustee shall authenticate,
deliver and register in exchange for such temporary Notes an
equal aggregate principal amount of definitive Notes of such
series. Such exchange shall be made by the Company at its own
expense and without any charge therefor to the Noteholders. Until
so exchanged, the temporary Notes of such series shall in all
respects be entitled to the same benefits under this Indenture as
definitive Notes of such series authenticated and delivered
hereunder.
Section 2.09 CANCELLATION OF NOTES PAID, ETC. All Notes
surrendered for the purpose of payment, redemption, exchange or
registration of transfer shall be surrendered to the Trustee for
cancellation and promptly cancelled by it and no Notes shall be
issued in lieu thereof except as expressly permitted by this
Indenture. The Company shall surrender to the Trustee any Notes
so acquired by it and such Notes shall be cancelled by the
Trustee. No Notes shall be authenticated in lieu of or in
exchange for any Notes so cancelled.
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Section 2.10 INTEREST RIGHTS PRESERVED. Each Note delivered
under this Indenture upon transfer of or in exchange for or in
lieu of any other Note shall carry all the rights to interest
accrued and unpaid, and to accrue, which were carried by such
other Note, and each such Note shall be so dated that neither
gain nor loss of interest shall result from such transfer,
exchange or substitution.
Section 2.11 SPECIAL RECORD DATE. If and to the extent that
the Company fails to make timely payment or provision for timely
payment of interest on any series of Notes (other than on an
Interest Payment Date that is a Maturity date), that interest
shall cease to be payable to the Persons who were the Noteholders
of such series at the applicable Regular Record Date. In that
event, when moneys become available for payment of the interest,
the Trustee shall (a) establish a date of payment of such
interest and a Special Record Date for the payment of that
interest, which Special Record Date shall be not more than 15
or fewer than 10 days prior to the date of the proposed payment
and (b) mail notice of the date of payment and of the Special
Record Date not fewer than 10 days preceding the Special Record
Date to each Noteholder of such series at the close of business
on the 15th day preceding the mailing at the address of such
Noteholder, as it appeared on the register for the Notes. On
the day so established by the Trustee, the interest shall be
payable to the Holders of the applicable Notes at the close of
business on the Special Record Date.
Section 2.12 PAYMENT OF NOTES. Payment of the principal of
and interest and premium on all Notes shall be payable as
follows:
(a) On or before 11:00 a.m., New York City time, or
such other time as shall be agreed upon between the Trustee and
the Company, of the day on which payment of principal, interest
and premium is due on any Global Note pursuant to the terms
thereof, the Company shall deliver to the Trustee funds available
on such date sufficient to make such payment, by wire transfer of
immediately available funds or by instructing the Trustee to
withdraw sufficient funds from an account maintained by the
Company with the Trustee or such other method as is
acceptable to the Trustee. On or before 12:00 noon, New York City
time, or such other time as shall be agreed upon between the
Trustee and the Depositary, of the day on which any payment of
interest is due on any Global Note (other than at Maturity), the
Trustee shall pay to the Depositary such interest in same day
funds. On or before 1:00 p.m., New York City time or such other
time as shall be agreed upon between the Trustee and the
Depositary, of the day on which principal, interest payable at
Maturity and premium, if any, is due on any Global Note, the
Trustee shall deposit with the Depositary the amount equal to the
principal, interest payable at Maturity and premium, if any, by
wire transfer into the account specified by the Depositary. As a
condition to the payment, at Maturity, of any part of the
principal of, interest on, and applicable premium of any Global
Note, the Depositary shall surrender, or cause to be surrendered,
such Global Note to the Trustee, whereupon a new Global Note
shall be issued to the Depositary pursuant to Section 2.06(f)
hereof.
(b) With respect to any Note that is not a Global Note,
principal, applicable premium and interest due at the Maturity of
the Note shall be payable in immediately available funds when due
upon presentation and surrender of such Note at the corporate
trust office of the Trustee or at the authorized office of any
paying agent in the Borough of Manhattan, The City and State of
New York. Interest on any Note that is not a Global Note (other
than interest payable at Maturity) shall be paid by check payable
in clearinghouse funds mailed to the Holder thereof at such
Holder's address as it appears on the register; provided that
if the Trustee receives a written request from any Holder of
Notes, the aggregate principal amount of which having the
12
same Interest Payment Date equals or exceeds $10,000,000, on or
before the applicable Regular Record Date for such Interest Payment
Date, interest on such Note shall be paid by wire transfer of
immediately available funds to a bank within the continental
United States designated by such Holder in its request or by
direct deposit into the account of such Holder designated by
such Holder in its request if such account is maintained with
the Trustee or any paying agent.
Section 2.13 NOTES ISSUABLE IN THE FORM OF A GLOBAL NOTE.
(a) If the Company shall establish pursuant to Section
2.05 hereof that the Notes of a particular series are to be
issued in the form of one or more Global Notes, then the Company
shall execute and the Trustee shall, in accordance with Section
2.05 hereof and the Company Order delivered to the Trustee
thereunder, authenticate and deliver such Global Note or Notes,
which, unless otherwise specified in such Company Order, (i)
shall represent, shall be denominated in an amount equal to the
aggregate principal amount of, and shall have the same terms as,
the outstanding Notes of such series to be represented by such
Global Note or Notes, (ii) shall be registered in the name of
the Depositary or its nominee, (iii) shall be delivered by the
Trustee to the Depositary or pursuant to the Depositary's
instruction and (iv) shall bear a legend substantially to the
following effect: "This Note is a Global Note registered in
the name of the Depositary (referred to herein) or a nominee
thereof and, unless and until it is exchanged in whole for the
individual Notes represented hereby as provided in the Indenture
referred to below, this Global Note may not be transferred
except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of
such successor Depositary. Unless this Global Note is presented
by an authorized representative of The Depository Trust Company
(55 Water Street, New York, New York), to the Trustee for
registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co.
or such other name as requested by an authorized representative
of The Depository Trust Company and any payment is made to
Cede & Co., any transfer, pledge or other use hereof for value
or otherwise by or to any person is wrongful since the registered
owner hereof, Cede & Co., has an interest herein" or such
other legend as may be required by the rules and regulations
of the Depositary.
(b) (i) If at any time the Depositary for a Global
Note notifies the Company that it is unwilling or unable to
continue as Depositary for such Global Note or if at any time the
Depositary for the Global Note shall no longer be eligible or in
good standing under the Securities Exchange Act of 1934 or other
applicable statute or regulation, the Company shall appoint a
successor Depositary with respect to such Global Note. If a
successor Depositary for such Global Note is not appointed by the
Company within 90 days after the Company receives such notice or
becomes aware of such ineligibility, the Company's election
pursuant to Section 2.05(c)(vi) hereof shall no longer be
effective with respect to the series of Notes evidenced by such
Global Note and the Company shall execute, and the Trustee,
upon receipt of a Company Order for the authentication and
delivery of individual Notes of such series in exchange for
such Global Note, shall authenticate and deliver, individual
Notes of such series of like tenor and terms in definitive
form in an aggregate principal amount equal to the principal
amount of such Global Note in exchange for such Global Note.
The Trustee shall not be charged with knowledge or notice of
the ineligibility of a Depositary unless a Responsible Officer
shall have actual knowledge thereof.
(ii) (A) The Company may at any time and in its sole
discretion determine that all outstanding (but not
less than all) Notes of a series issued or issuable
in the
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form of one or more Global Notes shall no longer
be represented by such Global Note or Notes.
In such event the Company shall execute, and the
Trustee, upon receipt of a Company Order for the
authentication and delivery of individual Notes in
exchange for such Global Note, shall authenticate
and deliver individual Notes of like tenor and terms
in definitive form in an aggregate principal amount
equal to the principal amount of such Global Note or
Notes in exchange for such Global Note or Notes.
(B) Within seven days after the occurrence of an
Event of Default with respect to any series of
Global Notes, the Company shall execute, and the
Trustee shall authenticate and deliver, Notes of
such series in definitive registered form in any
authorized denominations and in aggregate principal
amount equal to the principal amount of such Global
Notes in exchange for such Global Notes.
(iii) In any exchange provided for in any of the
preceding two paragraphs, the Company will execute and
the Trustee will authenticate and deliver individual
Notes in definitive registered form in authorized
denominations. Upon the exchange of a Global Note for
individual Notes, such Global Note shall be cancelled
by the Trustee. Notes issued in exchange for a Global
Note pursuant to this Section shall be registered in
such names and in such authorized denominations as the
Depositary for such Global Note, pursuant to
instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Notes to the Depositary for delivery
to the persons in whose names such Notes are so
registered, or if the Depositary shall refuse or be
unable to deliver such Notes, the Trustee shall deliver
such Notes to the persons in whose names such Notes are
registered, unless otherwise agreed upon between the
Trustee and the Company, in which event the Company
shall cause the Notes to be delivered to the persons in
whose names such Notes are registered.
(c) Neither the Company, the Trustee, any
Authenticating Agent nor any paying agent shall have any
responsibility or liability for any aspect of the records
relating to, or payments made on account of, beneficial ownership
interests of a Global Note or for maintaining, supervising or
reviewing any records relating to such beneficial ownership
interest.
(d) Pursuant to the provisions of this subsection, at
the option of the Trustee (subject to Section 2.04(a) hereof) and
upon 30 days' written notice to the Depositary but not prior to
the first Interest Payment Date of the respective Global Notes,
the Depositary shall be required to surrender any two or more
Global Notes which have identical terms, including, without
limitation, identical maturities, interest rates and redemption
provisions (but which may have differing Original Issue Dates) to
the Trustee, and the Company shall execute and the Trustee shall
authenticate and deliver to, or at the direction of, the
Depositary a Global Note in principal amount equal to the
aggregate principal amount of, and with all terms identical to,
the Global Notes surrendered thereto and that shall indicate each
applicable Original Issue Date and the principal amount applicable
to each such Original Issue Date. The exchange contemplated in
this subsection shall be consummated at least 30 days prior to
any Interest Payment Date applicable to any of the Global Notes
surrendered to the Trustee. Upon any exchange of any Global
Note with two or more Original Issue Dates, whether pursuant
to this Section or pursuant to Section 2.06 or Section 3.03
hereof, the aggregate principal amount of the Notes with a
particular Original Issue Date shall be the same before and
after such
14
exchange, after giving effect to any retirement of
Notes and the Original Issue Dates applicable to such Notes
occurring in connection with such exchange.
Section 2.14 CUSIP AND ISIN NUMBERS. The Company in issuing
Notes may use "CUSIP" or "ISIN" numbers (if then generally in
use) and, if so used, the Trustee shall use "CUSIP" or "ISIN"
numbers in notices of redemption as a convenience to holders of
Notes; provided, that any such notice may state that no
representation is made as to the correctness of such numbers
either as printed on the Notes or contained in any notice of
redemption and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such
redemption shall not be affected by any defect in or omission
of such numbers. The Company shall promptly notify the Trustee
of any change in the "CUSIP" or "ISIN" numbers.
Section 2.15 EXTENSION OF INTEREST PAYMENT PERIODS. The Company
shall have the right at any time, so long as the Company is not
in default in the payment of interest on the Notes of any series
hereunder, to extend interest payment periods on all Notes of one
or more series, if so specified as contemplated by Section 2.05
with respect to such Notes and upon such terms as may be
specified as contemplated by Section 2.05 with respect to such
Notes.
ARTICLE III
REDEMPTION OF NOTES
Section 3.01 APPLICABILITY OF ARTICLE. Those Notes of any
series that are, by their terms, redeemable prior to their Stated
Maturity at the option of the Company, may be redeemed by the
Company at such times, in such amounts and at such prices as may
be specified therein and in accordance with the provisions of
this Article III.
Section 3.02 NOTICE OF REDEMPTION; SELECTION OF NOTES.
(a) The election of the Company to redeem any Notes
shall be evidenced by a Board Resolution which shall be given
with notice of redemption to the Trustee at least 45 days (or
such shorter period acceptable to the Trustee in its sole
discretion) prior to the redemption date specified in such
notice.
(b) Notice of redemption to each Holder of Notes to be
redeemed as a whole or in part shall be given by the Trustee, in
the manner provided in Section 15.10 hereof, no less than 30 or
more than 60 days prior to the date fixed for redemption. Any
notice which is given in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the
Noteholder receives the notice. In any case, failure duly to give
such notice,or any defect in such notice, to the Holder of any
Note designated for redemption as a whole or in part shall not
affect the validity of the proceedings for the redemption of any
other Note.
(c) Each such notice shall identify the Notes to be
redeemed (including "CUSIP" or "ISIN" numbers) and shall specify
the date fixed for redemption, the places of redemption and the
redemption price (or the method for calculation thereof) at which
such Notes are to be redeemed, and shall state that (subject to
subsection (e) of this section) payment of the redemption price
of such Notes or portion thereof to be redeemed will be made upon
surrender of such Notes at such places of redemption, that
interest accrued to the date fixed for redemption will be paid as
specified in such notice, and that from and after such date
interest thereon shall cease to accrue. If less than all of a
series of Notes having the same terms are to be redeemed, the
notice shall specify the Notes or portions thereof to be
redeemed. If any Note
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is to be redeemed in part only, the notice which relates to such
Note shall state the portion of the principal amount thereof to
be redeemed, and shall state that, upon surrender of such Note,
a new Note or Notes having the same terms in aggregate principal
amount equal to the unredeemed portion thereof will be issued.
(d) Unless otherwise provided by a Company Order under
Section 2.05 hereof, if less than all of a series of Notes is to
be redeemed, the Trustee shall select in such manner as it shall
deem appropriate and fair in its discretion the particular Notes
to be redeemed in whole or in part and shall hereafter promptly
notify the Company in writing of the Notes so to be redeemed. If
less than all of a series of Notes represented by a Global Note
is to be redeemed, the particular Notes or portions thereof of
such series to be redeemed shall be selected by the Depositary
for such series of Notes in such manner as the Depositary shall
determine. Notes shall be redeemed only in denominations of
$1,000, or such other denominations authorized by a Company Order
pursuant to Section 2.05 hereof, provided that any remaining
principal amount of a Note redeemed in part shall be a
denomination authorized under this Indenture.
(e) If at the time of the mailing of any notice of
redemption at the option of the Company, the Company shall not
have irrevocably directed the Trustee to apply funds then on
deposit with the Trustee or held by it and available to be used
for the redemption of Notes to redeem all the Notes called for
redemption, such notice, at the election of the Company, may
state that it is conditional and subject to the receipt of the
redemption moneys by the Trustee on or before the date fixed for
redemption and that such notice shall be of no force and effect
unless such moneys are so received on or before such date.
Section 3.03 PAYMENT OF NOTES ON REDEMPTION; DEPOSIT OF
REDEMPTION PRICE.
(a) If notice of redemption for any Notes shall have
been given as provided in Section 3.02 hereof and such notice
shall not contain the language permitted at the Company's option
under Section 3.02(e) hereof, such Notes or portions of Notes
called for redemption shall become due and payable on the date
and at the places stated in such notice at the applicable
redemption price, together with interest accrued to the date
fixed for redemption of such Notes. Interest on the Notes or
portions thereof so called for redemption shall cease to accrue
and such Notes or portions thereof shall be deemed not to be
entitled to any benefit under this Indenture except to receive
payment of the redemption price together with interest accrued
thereon to the date fixed for redemption. Upon presentation and
surrender of such Notes at the place of payment specified in such
notice, such Notes or the specified portions thereof shall be
paid and redeemed at the applicable redemption price, together
with interest accrued thereon to the date fixed for redemption.
(b) If notice of redemption shall have been given as
provided in Section 3.02 hereof and such notice shall contain the
language permitted at the Company's option under Section 3.02(e)
hereof, such Notes or portions of Notes called for redemption
shall become due and payable on the date and at the places stated
in such notice at the applicable redemption price, together with
interest accrued to the date fixed for redemption of such Notes,
and interest on the Notes or portions thereof so called for
redemption shall cease to accrue and such Notes or portions
thereof shall be deemed not to be entitled to any benefit under
this Indenture except to receive payment of the redemption price
together with interest accrued thereon to the date fixed for
redemption; provided that, in each case, the Company shall have
deposited with the Trustee or a paying agent on or prior to 11:00
a.m. New York City time on such redemption date an amount
sufficient to pay the redemption price together with interest
accrued to the date fixed for
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redemption. Upon the Company making such deposit and, upon
presentation and surrender of such Notes at such a place of
payment in such notice specified, such Notes or the specified
portions thereof shall be paid and redeemed at the applicable
redemption price, together with interest accrued thereon to the
date fixed for redemption. If the Company shall not make such deposit
on or prior to the redemption date, the notice of redemption shall
be of no force and effect and the principal on such Notes or
specified portions thereof shall continue to bear interest as if
the notice of redemption had not been given.
(c) No notice of redemption of Notes shall be mailed
during the continuance of any Event of Default, except (1) that,
when notice of redemption of any Notes has been mailed, the
Company shall redeem such Notes but only if funds sufficient for
that purpose have prior to the occurrence of such Event of
Default been deposited with the Trustee or a paying agent for
such purpose, and (2) that notices of redemption of all
outstanding Notes may be given during the continuance of an Event
of Default.
(d) Upon surrender of any Note redeemed in part only,
the Company shall execute, and the Trustee shall authenticate,
deliver and register, a new Note or Notes of authorized
denominations in aggregate principal amount equal to, and having
the same terms, Original Issue Date or Dates and series as, the
unredeemed portion of the Note so surrendered.
ARTICLE IV
SINKING FUNDS
Section 4.01 APPLICABILITY OF ARTICLE. The provisions of
this Article shall be applicable to any sinking fund for the
retirement of the Notes of any series, except as otherwise
specified as contemplated by Section 2.05(c) hereof for Notes of
such series.
The minimum amount of any sinking fund payment provided for
by the terms of Notes of any series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of
such minimum amount provided for by the terms of Notes of any
series is herein referred to as an "optional sinking fund
payment". If provided for by the terms of Notes of any series,
the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 4.02 hereof. Each sinking fund
payment shall be applied to the redemption of Notes of the series
in respect of which it was made as provided for by the terms of
such Notes.
Section 4.02 SATISFACTION OF SINKING FUND PAYMENTS WITH
NOTES. The Company (a) may deliver Outstanding Notes (other than
any previously called for redemption) of a series in respect of
which a mandatory sinking fund payment is to be made and (b) may
apply as a credit Notes of such series which have been redeemed
either at the election of the Company pursuant to the terms of
such Notes or through the application of permitted optional
sinking fund payments pursuant to the terms of such Notes, in
each case in satisfaction of all or any part of such mandatory
sinking fund payment; provided, however, that no Notes shall be
applied in satisfaction of a mandatory sinking fund payment if
such Notes shall have been previously so applied. Notes so
applied shall be received and credited for such purpose by the
Trustee at the redemption price specified in such Notes for
redemption through operation of the sinking fund and the amount
of such mandatory sinking fund payment shall be reduced
accordingly.
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Section 4.03 REDEMPTION OF NOTES FOR SINKING FUND. Not less
than 45 days prior to each sinking fund payment date for the
Notes of any series, the Company shall deliver to the Trustee an
Officers' Certificate specifying:
(a) the amount of the next succeeding mandatory sinking
fund payment for such series;
(b) the amount, if any, of the optional sinking fund payment
to be made together with such mandatory sinking fund
payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking fund
payment which is to be satisfied by the payment of cash; and
(e) the portion, if any, of such aggregate sinking fund
payment which is to be satisfied by delivering and crediting
Notes of such series pursuant to Section 4.02 hereof and
stating the basis for such credit and that such Notes have
not previously been so credited.
The Company shall also deliver to the Trustee any Notes to be so
delivered. If the Company shall not deliver such Officers'
Certificate, the next succeeding sinking fund payment for such
series shall be made entirely in cash in the amount of the
mandatory sinking fund payment. Not less than 30 days before each
such sinking fund payment date the Trustee shall select the Notes
to be redeemed upon such sinking fund payment date in the manner
specified in Section 3.02(d) hereof and cause notice of the
redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 3.02 hereof.
Such notice having been duly given, the redemption of such Notes
shall be made upon the terms and in the manner stated in Section
3.03 hereof.
ARTICLE V
SATISFACTION AND DISCHARGE; UNCLAIMED MONEYS
Section 5.01 SATISFACTION AND DISCHARGE OF INDENTURE. This
Indenture shall upon the request of the Company cease to be of
further effect with respect to the Notes of any series (except as
to any surviving rights of registration of transfer or exchange
of Notes of such series herein expressly provided for), and the
Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this
Indenture, when:
(a) either:
(i) all Notes of such series previously authenticated
and delivered (other than Notes of such series which
have been destroyed, lost or stolen and which have been
replaced or paid) have been delivered to the Trustee
for cancellation; or
(ii) all the Notes of such series not
previously delivered to the Trustee for cancellation have
become due and payable (whether at stated maturity, early
redemption or otherwise), and the Company has deposited, or
caused to be deposited, irrevocably with the Trustee as
funds in trust solely for the benefit of the Holders of the
Notes of such series an amount in cash sufficient to pay
principal of, premium, if any, and interest on all
outstanding Notes of such series;
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(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company with respect to the Notes
of such series; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture with respect to
the Notes of such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture
with respect to the Notes of any or all series, the obligations
of the Company to the Trustee under Section 9.06 hereof shall
survive, and, if money will have been deposited with the Trustee
pursuant to subclause (ii) of clause (a) of this Section 5.01,
the obligations of the Trustee under Sections 5.02 and 5.05
hereof shall survive.
Section 5.02 APPLICATION OF TRUST FUNDS; INDEMNIFICATION.
(a) Subject to the provisions of Section 5.05 hereof,
all money and U.S. Government Obligations deposited with the
Trustee pursuant to Section 5.01, 5.03 or 5.04 hereof and all
money received by the Trustee in respect of U.S. Government
Obligations deposited with the Trustee pursuant to Sections
5.01,5.03 or 5.04 hereof, shall be held in trust and applied by
it, in accordance with the provisions of the Notes of any
particular series and this Indenture, to the payment, either
directly or through any paying agent as the Trustee may
determine, to the persons entitled thereto, of the principal,
premium, if any, and interest for whose payment such money has
been deposited with or received by the Trustee.
(b) The Company shall pay and shall indemnify the
Trustee against any tax, fee or other charge imposed on or
assessed against U.S. Government Obligations deposited pursuant
to Sections 5.01, 5.03 or 5.04 hereof or the interest, premium,
if any, and principal received in respect of such obligations
other than any payable by or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company
from time to time upon the request of the Company any U.S.
Government Obligations or money held by it as provided in
Sections 5.01, 5.03 or 5.04 hereof which, in the opinion of a
nationally recognized firm of independent certified public
accountants expressed in a written certification thereof
delivered to the Trustee, are then in excess of the amount
thereof which then would have been required to be deposited for
the purpose for which such U.S. Government Obligations or money
were deposited or received. This provision shall not authorize
the sale by the Trustee of any U.S. Government Obligations held
under this Indenture.
Section 5.03 LEGAL DEFEASANCE. The Company shall be deemed
to have been discharged from its obligations with respect to all
of the outstanding Notes of any series on the day after the date
of the deposit referred to in subparagraph (i) hereof, and the
provisions of this Indenture, as it relates to the outstanding
Notes of such series, shall no longer be in effect (and the
Trustee, at the expense of the Company, shall, upon the request
of the Company, execute proper instruments acknowledging the
same), except as to:
(a) the rights of Holders of the Notes of such series to
receive, solely from the trust funds described in
subparagraph (i) below, payments of the principal of,
premium, if any, or interest on the outstanding Notes of
such series on the date such payments are due;
19
(b) the Company's obligations with respect to the Notes of
such series under Sections 2.06, 2.07, 2.13, 6.02 and 6.04
hereof; and
(c) the rights, powers, trust and immunities of the Trustee
hereunder and the duties of the Trustee under Section 5.02
hereof and the duty of the Trustee to authenticate Notes of
such series issued on registration of transfer of exchange;
provided that the following conditions shall have been
satisfied:
(i) the Company shall have deposited, or caused to be
deposited, irrevocably with the Trustee as funds in
trust for the purpose of making the following payments,
specifically pledged as security for and dedicated
solely to the benefit of the Holders of the Notes of
such series, cash in U.S. dollars and/or U.S.
Government Obligations which through the payment of
interest and principal in respect thereof, in
accordance with their terms, will provide (without
reinvestment), not later than one day before the due
date of any payment of money, an amount in cash,
sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee,
to pay principal of, premium, if any, and interest on
all the Notes of such series on the dates such payments
of principal, premium, if any, or interest are due to
maturity or redemption;
(ii) no Event of Default or event which with the giving
of notice or lapse of time or both would become an
Event of Default with respect to the Notes of such
series shall have occurred and be continuing on the
date of such deposit and 91 days shall have passed
after the deposit has been made, and, during such 91
day period, no Default with respect to the Notes of
such series specified in Section 8.01(a)(5) or (6)
hereof with respect to the Company occurs which is
continuing at the end of such period;
(iii) the Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel to
the effect that (A) the Company has received from, or
there has been published by, the Internal Revenue
Service a ruling, or (B) since the date of execution of
this Indenture, there has been a change in the
applicable federal income tax law, in either case to
the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of the Notes of
such series will not recognize income, gain or loss for
federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject
to federal income tax in the same amounts, in the same
manner and at the same times as would have been the
case if such deposit, defeasance and discharge had not
occurred;
(iv) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not
made by the Company with the intent of preferring the
Holders of the Notes of such series over any other
creditors of the Company or with the intent of
defeating, hindering, delaying or defrauding any other
creditors of the Company;
(v) such deposit shall not cause the Trustee to have a
conflicting interest within the meaning of the TIA with
respect to any securities of the Company or result in
the trust arising from such deposit constituting an
"investment company" (as defined in the Investment
Company Act of 1940, as amended); and
20
(vi) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent relating to the
defeasance contemplated by this Section 5.03 have been
complied with.
Subject to compliance with this Article V, the Company may
exercise its option under this Section 5.03 notwithstanding the
prior exercise of its option under Section 5.04 with respect to
the Notes of any series. Following a defeasance, payment of the
Notes of such series may not be accelerated because of an Event
of Default.
Section 5.04 COVENANT DEFEASANCE. On and after the day after
the date of the deposit referred to in subparagraph (a) hereof,
the Company may omit to comply with any term, provision or
condition set forth under Section 6.05 and Article XII hereof as
well as any additional covenants contained in a supplemental
indenture hereto (and the failure to comply with any such
provisions shall not constitute a Default or Event of Default
under Section 8.01 hereof) and the occurrence of any event
described in clause (3) and (4) of Section 8.01(a) hereof shall
not constitute a Default or Event of Default hereunder, with
respect to the Notes of any series, provided that the following
conditions shall have been satisfied:
(a) with reference to this Section 5.04, the Company has
deposited, or caused to be deposited, irrevocably (except as
provided in Section 5.05 hereof) with the Trustee as funds
in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Notes
of such series, cash in U.S. dollars and/or U.S. Government
Obligations which through the payment of principal and
interest in respect thereof, in accordance with their terms,
will provide (without reinvestment), not later than one day
before the due date of any payment of money, an amount in
cash, sufficient, in the opinion of a nationally recognized
firm of independent certified public accountants expressed
in a written certification thereof delivered to the Trustee,
to pay principal, premium, if any, and interest on all the
Notes of such series on the dates such payments of
principal, premium, if any, and interest are due to maturity
or redemption;
(b) no Event of Default or event which with the giving of
notice or lapse of time or both would become an Event of
Default with respect to the Notes of such series shall have
occurred and be continuing on the date of such deposit and
91 days shall have passed after the deposit has been made,
and, during such 91 day period, no Default with respect to
the Notes of such series specified in Section 8.01(a)(5) or
(6) hereof with respect to the Company occurs which is
continuing at the end of such period;
(c) the Company shall have delivered to the Trustee an
Opinion of Counsel confirming that Holders of the Notes of
such series will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and
defeasance and will be subject to federal income tax in the
same amounts, in the same manner and at the same times as
would have been the case if such deposit and defeasance had
not occurred;
(d) the Company shall have delivered to the Trustee an
Officers' Certificate stating the deposit was not made by
the Company with the intent of preferring the Holders of the
Notes of such series over any other creditors of the Company
or with the intent of defeating, hindering, delaying or
defrauding any other creditors of the Company;
(e) such deposit shall not cause the Trustee to have a
conflicting interest within the meaning of the TIA with
respect to any securities of the Company or result in the
trust
21
arising from such deposit constituting an "investment
company" (as defined in the Investment Company Act of 1940,
as amended);
(f) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for
relating to the defeasance contemplated by this Section 5.04
have been complied with; and
(g) following a covenant defeasance, payment of the Notes of
any series may not be accelerated because of an Event of
Default specified in Sections 8.01(a)(5) and (6) or by
reference to Sections 6.05 and 8.01(a)(3) and (4) and
Article XII hereof.
Section 5.05 REPAYMENT TO COMPANY. The Trustee and the
paying agent shall pay to the Company upon request any money held
by them for the payment of principal, premium, if any, or
interest that remains unclaimed for two years after the date upon
which such payment shall have become due. After payment to the
Company, Holders of the Notes of such series entitled to the
money must look to the Company for payment as general creditors
unless an applicable abandoned property law designates another
Person.
ARTICLE VI
PARTICULAR COVENANTS OF THE COMPANY
Section 6.01 PAYMENT OF PRINCIPAL AND INTEREST. The Company
covenants and agrees for the benefit of the Holders of the Notes
of any series that it will duly and punctually pay or cause to be
paid the principal of and any premium and interest, if any, on,
such Notes at the places, at the respective times and in the
manner provided in such Notes or in this Indenture.
Section 6.02 OFFICES FOR PAYMENTS, ETC. So long as the Notes
of any series are outstanding hereunder, the Company will
maintain an office or agency where the Notes of such series may
be presented for payment, for exchange as in this Indenture
provided, for registration of transfer as in this Indenture
provided, and where notices and demands to or upon the Company in
respect of the securities under this Indenture may be served.
The Principal Executive Offices of the Company will be such
office or agency unless the Company shall maintain some other
office or agency for such purposes and shall give the Trustee and
the registered holders of the securities written notice of the
location thereof. If the Company shall fail to give such notice
of the location or of any change in the location of any of the
above offices or agencies, presentations and demands may be made
and notices may be served at the Corporate Trust Office of the
Trustee, and, in such event, the Trustee shall act as the
Company's agent to receive all such presentations, surrenders,
notices and demands.
The Company may from time to time designate one or more
additional offices or agencies where the Notes of any series may
be presented for payment, for exchange as in this Indenture
provided and for registration of transfer as in this Indenture
provided, and the Company may from time to time rescind any such
designation; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its
obligation to maintain any office or agency provided for in
this Section. The Company will give to the Trustee prompt
written notice of any such designation or rescission thereof
and of any change in the location of any such other office or
agency.
22
Section 6.03 APPOINTMENT TO FILL A VACANCY IN OFFICE OF
TRUSTEE. The Company, whenever necessary to avoid or fill a
vacancy in the office of Trustee, will appoint, in the manner
provided in Section 9.11, a Trustee, so that there shall at all
times be a Trustee hereunder.
Section 6.04 PROVISION AS TO PAYING AGENT. The Trustee shall
be the paying agent for the Notes and, at the option of the
Company, the Company may appoint additional paying agents
(including without limitation itself or its Subsidiary unless an
Event of Default has occurred and is continuing). Whenever the
Company shall appoint a paying agent other than the Trustee with
respect to the Notes, it will cause such paying agent to execute
and deliver to the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provisions of this
Section:
(1) that such paying agent will hold all sums received
by it as such agent for the payment of the principal of or
interest, if any, on the Notes (whether such sums have been paid
to it by the Company or by any other obligor on the Notes) in
trust for the benefit of the Holders of the Notes, or of the
Trustee until such sums shall be paid to such Holders or
otherwise disposed of as herein provided;
(2) that such paying agent will give the Trustee notice
of any failure by the Company (or by any other obligor on Notes)
to make any payment of the principal of, premium if any, or
interest on the Notes when the same shall be due and payable; and
(3) that such paying agent will at any time during the
continuance of any such failure, upon the written request of the
Trustee, forthwith pay to the Trustee all sums so held in trust
by such paying agent.
The Company will, on or prior to each due date of the
principal of and any premium, if any, or interest on the Notes,
deposit with the paying agent a sum sufficient to pay such
principal and any premium or interest so becoming due, such sum
to be held in trust for the benefit of the Holders of the Notes
entitled to such principal of and any premium or interest, and
(unless such paying agent is the Trustee) the Company will
promptly notify the Trustee of any failure to take such action.
If the Company or its Subsidiary shall act as its own paying
agent with respect to the Notes, it will, on or before each due
date of the principal of (and premium, if any) or interest, if
any, on the Notes, set aside, segregate and hold in trust for the
benefit of the Holders of the Notes, a sum sufficient to pay such
principal (and premium, if any) or interest, if any, so becoming
due until such sums shall be paid to such Holders or otherwise
disposed of as herein provided. The Company will promptly notify
the Trustee of any failure to take such action.
The Company may at any time pay or cause to be paid to the
Trustee all sums held in trust by it or any paying agent
hereunder, as required by this Section, such sums to be held by
the Trustee upon the trusts herein contained, and, upon such
payment by any paying agent to the Trustee, such paying agent
shall be released from all further liability with respect to such
money.
Anything in this Section to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this Section
is subject to the provisions of Sections 5.03 and 5.04.
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Section 6.05 CORPORATE EXISTENCE. Subject to the rights of
the Company under Article XII, the Company shall do or cause to
be done all things necessary to preserve and keep in full force
and effect its corporate existence and the rights (charter and
statutory) and franchises of the Company; provided, however, that
the Company shall not be required to preserve any such right or
franchise if, in the judgment of the Company, the preservation
thereof is no longer desirable in the conduct of the business of
the Company.
Section 6.06 CERTIFICATES AND NOTICE TO TRUSTEE. The Company
shall, on or before __________ of each year, commencing
_______________, deliver to the Trustee a certificate from its
principal executive officer, principal financial officer or
principal accounting officer covering the preceding calendar year
and stating whether or not, to the knowledge of such Person, the
Company has complied with all conditions and covenants under this
Indenture, and, if not, describing in reasonable detail any
failure by the Company to comply with any such conditions or
covenants. For purposes of this Section, compliance shall be
determined without regard to any period of grace or requirement
of notice provided under this Indenture.
ARTICLE VII
NOTEHOLDER LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE
Section 7.01 COMPANY TO FURNISH NOTEHOLDER LISTS. The
Company and any other obligor on the Notes shall furnish or cause
to be furnished to the Trustee a list in such form as the Trustee
may reasonably require of the names and addresses of the Holders
of the Notes:
(a) semi-annually and not more than 15 days after each
Regular Record Date for each Interest Payment Date that is not a
Maturity date, as of such Regular Record Date, and such list need
not include information received after such date; and
(b) at such other times as the Trustee may request in
writing, within 30 days after receipt by the Company of any such
request, as of a date not more than 15 days prior to the time
such information is furnished, and such list need not include
information received after such date; provided that if and so
long as the Trustee shall be the registrar for the Notes, such
list shall not be required to be furnished.
Section 7.02 PRESERVATION AND DISCLOSURE OF NOTEHOLDER
LISTS.
(a) The Trustee shall preserve, in as current a form as
is reasonably practicable, all information as to the names and
addresses of the Holders of the Notes (i) contained in the most
recent lists furnished to it as provided in Section 7.01, (ii)
received by it in the capacity of registrar for the Notes, if so
acting, and (iii) filed with it within the two preceding years
pursuant to Section 7.04(d)(2). The Trustee may destroy any list
furnished to it as provided in Section 7.01 upon receipt of a new
list so furnished.
(b) In case three or more Holders of Notes (hereinafter
referred to as "applicants") apply in writing to the Trustee and
furnish to the Trustee reasonable (in the discretion of the
Trustee) proof that each such applicant has owned a Note for a
period of at least six months preceding the date of such
application, and such application states that the applicants desire
to communicate with other Holders of Notes with respect to their
rights under this Indenture or under the Notes and such application
is accompanied by a copy of the form of proxy or other communication
which such applicants
24
propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election, either
(i) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with
the provisions of subsection (a) of this Section; or
(ii) inform such applicants as to the approximate number
of Holders whose names and addresses appear in the
information preserved at the time by the Trustee, in
accordance with the provisions of such subsection (a) and
as to the approximate cost of mailing to such Holders the
form of proxy or other communication, if any, specified
in such application.
If the Trustee shall elect not to afford to such applicants
access to such information, the Trustee shall, upon the written
request of such applicants, mail to each Holder of Notes, whose
name and address appears in the information preserved at the time
by the Trustee in accordance with the provisions of such
subsection (a) a copy of the form of proxy or other communication
which is specified in such request, with reasonable promptness
after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses
of mailing, unless within five days after such tender the Trustee
shall mail to such applicants and file with the Commission,
together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interests of the Holders or
would be in violation of applicable law. Such written statement
shall specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the
written statement so filed, shall enter an order refusing to
sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall
find, after notice and opportunity for hearing, that all the
objections so sustained have been met, and shall enter an order
so declaring, the Trustee shall mail copies of such material to
all such Holders with reasonable promptness after the entry of
such order and the renewal of such tender; otherwise the Trustee
shall be relieved of any obligation or duty to such applicants
respecting their application.
(c) Each and every Holder of a Note, by receiving and
holding the same, agrees with the Company and the Trustee that
neither the Company nor the Trustee nor any agent of the Company
or the Trustee shall be held accountable by reason of the
disclosure of any such information as to the names and addresses
of the Holders of Notes in accordance with the provisions of
subsection (b) of this Section, regardless of the source from
which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing any material
pursuant to a request made under such subsection (b).
Section 7.03 REPORTS BY THE COMPANY. The Company shall:
(a) file with the Trustee, within 15 days after the
Company is required to file the same with the Commission, copies
of the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not
required to file information, documents or reports pursuant to
either of said Sections, then it will file with the Trustee and
the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports
which may be required pursuant to Section 13
25
of the Securities Exchange Act of 1934 in respect of a security
listed and registered on a national securities exchange as may
be prescribed from time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to
time by the Commission, such additional information, documents
and reports with respect to compliance by the Company with the
conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations. Filing of such
information, documents and reports with the Trustee is for
informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information
contained therein or determinable from information contained
therein, including the Company's compliance with any of its
covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officers' Certificates); and
(c) transmit by mail to all Holders of Notes, within 30
days after the filing thereof with the Trustee in the manner and
to the extent provided in Section 7.04(d), such summaries of any
information, documents and reports required to be filed by the
Company pursuant to paragraphs (a) and (b) of this Section as may
be required by rules and regulations prescribed from time to time
by the Commission.
Note that, for purposes of this Section 7.03, the Company's
responsibility to file information with the Trustee which is also
filed with the Commission, shall be deemed to be satisfied by the
posting of the Company's filings with the Commission on the
Commission's website (www.sec.gov/edgar).
Section 7.04 REPORTS BY THE TRUSTEE.
(a) Annually, not later than August 15 of each year,
the Trustee shall transmit by mail a brief report dated as of
such date that complies with Section 313(a) of the TIA (to the
extent required by such Section).
(b) The Trustee shall from time to time transmit by
mail brief reports that comply, both in content and date of
delivery, with Section 313(b) of the TIA (to the extent required
by such Section).
(c) A copy of each such report filed pursuant to this
section shall, at the time of such transmission to such Holders,
be filed by the Trustee with each stock exchange upon which any
Notes are listed and also with the Commission. The Company will
notify the Trustee promptly in writing upon the listing of such
Notes on any stock exchange or any delisting thereof.
(d) Except as otherwise described in Section 7.03,
reports pursuant to this Section shall be transmitted:
(1) by mail to all Holders of Notes, as their names and
addresses appear in the register for the Notes;
(2) by mail to such Holders of Notes as have, within the
two years preceding such transmission, filed their names
and addresses with the Trustee for such purpose;
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(3) by mail, except in the case of reports pursuant to
Section 7.04(b) and (c) hereof, to all Holders of Notes
whose names and addresses have been furnished to or
received by the Trustee pursuant to Section 7.0 and
7.02(a)(ii) hereof; and
(4) at the time such report is transmitted to the Holders
of the Notes, to each exchange on which Notes are listed
and also with the Commission.
ARTICLE VIII
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS
ON EVENTS OF DEFAULT
Section 8.01 EVENTS OF DEFAULT.
(a) If one or more of the following Events of Default
with respect to the Notes of any series shall have occurred and
be continuing:
(1) default in the payment of any installment of interest
upon any Note of such series as and when the same shall
become due and payable, and continuance of such default
for a period of thirty (30) days, provided, however, that
a valid extension of the interest payment period or
deferral of interest payment by the Company as
contemplated in Section 2.15 shall not constitute a
failure to pay interest for this purpose;
(2) default in the payment of the principal of or any
premium on any Note of such series as and when the same
shall become due and payable, and continuance of such
default for a period of one (1) day;
(3) failure on the part of the Company duly to observe or
perform any other covenants or agreements on the part of
the Company contained in this Indenture (other than a
covenant or agreement that has been expressly included in
this Indenture solely for the benefit of one or more
series of Notes other than such series) for a period of
sixty (60) days after the date on which written notice
specifying such failure, stating that such notice is a
"Notice of Default" hereunder and demanding that the
Company remedy the same, shall have been given to the
Company by the Trustee by registered mail, or to the
Company and the Trustee by the Holders of not less than
33% in aggregate principal amount of the Notes of such
series at the time outstanding;
(4) a court having jurisdiction in the premises shall
enter a decree or order for relief in respect of the
Company in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or
hereafter in effect, adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any
applicable law, or appointing a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or similar
official) of the Company or for any substantial part of
the property of the Company, or ordering the winding up
or liquidation of the affairs of the Company, and such
decree or order shall remain unstayed and in effect for a
period of sixty (60) consecutive days;
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(5) the Company shall commence a voluntary case or
proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar law now or hereafter in
effect or any other case or proceeding to be adjudicated
a bankrupt or insolvent, or consent to the entry of a
decree or order for relief in an involuntary case under
any such law, or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking
reorganization or relief under any applicable law, or
consent to the filing of such petition or to the
appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee or sequestrator
(or similar official) of the Company or for any
substantial part of the property of the Company, or make
any general assignment for the benefit of creditors, or
the notice by it in writing of its inability to pay its
debts generally as they become due, or the taking of any
corporate action by the Company in furtherance of any
such action; or
(6) any other Event of Default specified with respect to
Notes of any series pursuant to Section 2.05 hereof;
then, unless the principal of and interest on all of the Notes
shall have already become due and payable, either the Trustee or
the Holders of a majority in aggregate principal amount of the
Notes of such series then outstanding, by notice in writing to
the Company (and to the Trustee if given by such Holders), may
declare the principal of and interest on all the Notes of such
series to be due and payable immediately and upon any such
declaration the same shall become immediately due and payable,
anything in this Indenture or in the Notes of such series
contained to the contrary notwithstanding; provided, however,
that if an Event of Default shall have occurred and be continuing
with respect to more than one series of Notes, the Trustee or the
Holders of a majority in aggregate principal amount of the
Outstanding Notes of all such series, considered as one class,
may make such declaration of acceleration, and not the Holders of
the Notes of any one of such series.
The foregoing paragraph, however, is subject to the
condition that if, at any time after the principal of and
interest on the Notes of any series shall have been so declared
due and payable, and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as
hereinafter provided, the Company shall pay or shall deposit with
the Trustee a sum sufficient to pay all matured installments of
interest upon all of the Notes of such series and the principal
of and any premium on any and all Notes of such series which
shall have become due otherwise than by acceleration (with
interest on overdue installments of interest, to the extent that
payment of such interest is enforceable under applicable law, and
on such principal and applicable premium at the rate borne by the
Notes of such series to the date of such payment or deposit) and
all sums paid or advanced by the Trustee hereunder, the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 9.06 hereof, and any and all Events of
Default, other than the non-payment of principal of and accrued
interest on any Notes which shall have become due solely by
acceleration of maturity, shall have been cured or waived, then
and in every such case such payment or deposit shall cause an
automatic waiver of the Event of Default and its consequences and
shall cause an automatic rescission and annulment of the
acceleration of the Notes of such series; but no such waiver or
rescission and annulment shall extend to or shall affect any
subsequent default, or shall impair any right consequent thereon.
(b) If the Trustee shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been
discontinued or abandoned because of such rescission or
28
annulment or for any other reason or shall have been determined
adversely to the Trustee, then and in every such case the Company
and the Trustee shall be restored respectively to their several
positions and rights hereunder, and all rights, remedies and powers
of the Company and the Trustee shall continue as though no such
proceeding had been taken.
Section 8.02 COLLECTION OF INDEBTEDNESS BY TRUSTEE; TRUSTEE
MAY PROVE DEBT.
(a) The Company covenants that if an Event of Default
described in clause (a)(1) or (a)(2) of Section 8.01 hereof shall
have occurred and be continuing, then, upon demand of the
Trustee, the Company shall pay to the Trustee, for the benefit of
the Holders of the Notes of the series with respect to which
Event of Default shall have occurred and is continuing, the whole
amount that then shall have so become due and payable on all such
Notes for principal or interest, as the case may be, with
interest upon the overdue principal and any premium and (to the
extent that payment of such interest is enforceable under
applicable law) upon the overdue installments of interest at the
rate borne by such Notes; and, in addition thereto, such further
amounts as shall be sufficient to cover the costs and expenses of
collection, including reasonable compensation to the Trustee, its
agents, attorneys and counsel, any expenses or liabilities
incurred by the Trustee hereunder other than through its
negligence or bad faith. Until such demand is made by the
Trustee, the Company may pay the principal of and interest on
such Notes to the Holders, whether or not such Notes be overdue.
(b) In case the Company shall fail forthwith to pay
such amounts upon such demand, the Trustee, in its own name and
as trustee of an express trust, shall be entitled and empowered
to institute any actions or proceedings at law or in equity for
the collection of the sums so due and unpaid, and may enforce any
such judgment or final decree against the Company or any other
obligor on such Notes and collect in the manner provided by law
out of the property of the Company or any other obligor on such
Notes wherever situated, the moneys adjudged or decreed to be
payable.
(c) In case there shall be pending proceedings relative
to the Company or any other obligor upon the Notes under Title 11
of the United States Code or any other applicable Federal or
state bankruptcy, insolvency or other similar law, or in case a
receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Company or its property
or such other obligor, or in case of any other comparable
judicial proceedings relative to the Company or such other
obligor, or to the creditors or property of the Company or such
other obligor, the Trustee, irrespective of whether the principal
of the Notes shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand pursuant to the provisions of
this Section, shall be entitled and empowered, by intervention in
such proceedings or otherwise:
(1) to file and prove a claim or claims for the
whole amount of the principal and interest owing and unpaid in
respect of the Notes, and to file such other papers or documents
as may be necessary or advisable in order to have the claims of
the Trustee and of the Noteholders allowed in any judicial
proceedings relative to the Company or such other obligor, or to
the creditors or property of the Company or such other obligor;
and
(2) to collect and receive any moneys or other
property payable or deliverable on any such claims, and to
distribute all amounts received with respect to the claims of the
Noteholders and of the Trustee on their behalf; and any trustee,
receiver, liquidator, custodian
29
or other similar official is hereby authorized by each of the
Noteholders to make payments to the Trustee, and, in the event
that the Trustee shall consent to the making of the payments
directly to the Noteholders, to pay to Trustee such amounts
due pursuant to Section 9.06 hereof.
(d) Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or vote for or
accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting
the Notes of any series or the rights of any Holder thereof, or
to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding except to vote for the election of
a trustee in bankruptcy or similar person.
(e) All rights of action and of asserting claims under
this Indenture, or under any of the Notes may be prosecuted and
enforced by the Trustee without the possession of any of the
Notes or the production thereof at any trial or other proceedings
relative thereto, and any such action or proceedings instituted
by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment, subject to the
payment of the expenses, disbursements and compensation of the
Trustee and its agents, attorneys and counsel, shall be for the
ratable benefit of the Holders of the Notes in respect of which
such action was taken.
(f) In any proceedings brought by the Trustee (and also
any proceedings involving the interpretation of any provision of
this Indenture to which the Trustee shall be a party), the
Trustee shall be held to represent all the Holders of the Notes
in respect to which action was taken, and it shall not be
necessary to make any Holders of such Notes parties to any such
proceedings.
Section 8.03 APPLICATION OF PROCEEDS. Any moneys collected
by the Trustee with respect to any of the Notes pursuant to this
Article shall be applied in the following order, at the date or
dates fixed by the Trustee for the distribution of such moneys,
upon presentation of the several Notes, and stamping thereon the
payment, if only partially paid, and upon surrender thereof if
fully paid.
FIRST: To the payment of all amounts due to the Trustee
pursuant to Section 9.06 hereof;
SECOND: In case the principal of the outstanding Notes in
respect of which such moneys have been collected shall not have
become due and be unpaid, to the payment of interest on the
Notes, in the order of the maturity of the installments of such
interest, with interest (to the extent allowed by law) upon the
overdue installments of interest at the rate borne by the Notes,
such payments to be made ratably to the persons entitled thereto,
and then to the payment to the Holders entitled thereto of the
unpaid principal of and applicable premium on any of the Notes
which shall have become due (other than Notes previously called
for redemption for the payment of which moneys are held pursuant
to the provisions of this Indenture), whether at stated maturity
or by redemption, in the order of their due dates, beginning with
the earliest due date, and if the amount available is not
sufficient to pay in full all Notes due on any particular date,
then to the payment thereof ratably, according to the amounts of
principal and applicable premium due on that date, to the Holders
entitled thereto, without any discrimination or privilege;
THIRD: In case the principal of the outstanding Notes in
respect of which such moneys have been collected shall have
become due, by declaration or otherwise, to the payment of the
whole amount then owing and unpaid upon the Notes for principal
and any premium and interest thereon, with interest on the
overdue principal and any premium and (to the extent allowed by
law) upon overdue installments of interest at the rate borne by
the Notes; and in case such moneys shall be insufficient to pay
in full the whole amount so due and unpaid upon the Notes,
30
then to the payment of such principal and any premium and interest
without preference or priority of principal and any premium over
interest, or of interest over principal and any premium or of any
installment of interest over any other installment of interest,
or of any Note over any other Note, ratably to the aggregate of
such principal and any premium and accrued and unpaid interest;
and
FOURTH: To the payment of the remainder, if any, to the
Company or its successors or assigns, or to whomsoever may
lawfully be entitled to the same, or as a court of competent
jurisdiction may determine.
Section 8.04 LIMITATIONS ON SUITS BY NOTEHOLDERS.
(a) No Holder of any Note of any series shall have any
right by virtue of or by availing of any provision of this
Indenture to institute any suit, action or proceeding in equity
or at law upon or under or with respect to this Indenture or for
the appointment of a receiver or trustee, or for any other remedy
hereunder, unless such Holder previously shall have given to the
Trustee written notice of an Event of Default with respect to
such Note and of the continuance thereof, as hereinabove
provided, and unless also Noteholders of a majority in aggregate
principal amount of the Notes of all series then outstanding in
respect of which an Event of Default has occurred and is
continuing, considered as one class, shall have made written
request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee for 60 days after
its receipt of such notice, request and offer of indemnity, shall
have neglected or refused to institute any such action, suit or
proceeding; it being understood and intended, and being expressly
covenanted by the taker and Holder of every Note of any series
with every other taker and Holder and the Trustee, that no one or
more Holders of Notes of such series shall have any right in any
manner whatever by virtue or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of any other
Holder of Notes of such series, or to obtain or seek to obtain
priority over or preference to any other such Holder or to
enforce any right under this Indenture, except in the manner
herein provided and for the equal, ratable and common benefit of
all Holders of Notes of such series. For the protection and
enforcement of the provisions of this Section, each and every
Noteholder and the Trustee shall be entitled to such relief as
can be given either at law or in equity.
(b) Notwithstanding any other provision in this
Indenture, however, the rights of any Holder of any Note to
receive payment of the principal of and any premium and interest
on such Note, on or after the respective due dates expressed in
such Note or on the applicable redemption date, or to institute
suit for the enforcement of any such payment on or after such
respective dates are absolute and unconditional, and shall not be
impaired or affected without the consent of such Holder.
Section 8.05 SUITS FOR ENFORCEMENT. In case an Event of
Default has occurred, has not been waived and is continuing
hereunder, the Trustee may in its discretion proceed to protect
and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any of such rights, either by
suit in equity or by action at law or by proceeding in bankruptcy
or otherwise, whether for the specific enforcement of any
covenant or agreement contained in this Indenture or in aid of
the exercise of any power granted to it under this Indenture, or
to enforce any other legal or equitable right vested in the
Trustee by this Indenture or by law.
31
Section 8.06 POWERS AND REMEDIES CUMULATIVE; DELAY OR
OMISSION NOT WAIVER OF DEFAULT. No right or remedy herein
conferred upon or reserved to the Trustee or to the Holders of
Notes is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law,
be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity
or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of
Notes to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any
such right or power or shall be construed to be a waiver of any
such Event of Default or an acquiescence therein; and, subject to
Section 8.04, every right and power given by this Indenture or by
law to the Trustee or to the Holders of Notes may be exercised
from time to time, and as often as shall be deemed expedient, by
the Trustee or by the Holders of Notes, as the case may be.
Section 8.07 DIRECTION OF PROCEEDINGS AND WAIVER OF DEFAULTS
BY MAJORITY OF NOTEHOLDERS.
(a) The Holders of a majority in aggregate principal
amount of the Notes of any series at the time outstanding shall
have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the
Trustee; provided, however, that if an Event of Default shall
have occurred and be continuing with respect to more than one
series of Notes, the Holders of a majority in aggregate principal
amount of the Outstanding Notes of all such series, considered as
one class, shall have the right to make such direction, and not
the Holders of the Notes of any one of such series; provided,
further, that such direction shall not be otherwise than in
accordance with law and the provisions of this Indenture; and
provided further that (subject to Section 9.01 hereof) the
Trustee shall have the right to decline to follow any such
direction if the Trustee being advised by counsel determines that
the action or proceeding so directed may not lawfully be taken or
if the Trustee in good faith by its board of directors or
trustees, executive committee, or a trust committee of directors
or trustees or responsible officers shall determine that the
action or proceeding so directed would involve the Trustee in
personal liability. Nothing in this Indenture shall impair the
right of the Trustee in its discretion to take any action deemed
proper by the Trustee and which is not inconsistent with such
direction or directions by Noteholders.
(b) The Holders of a majority in aggregate principal
amount of the Notes of any series at the time outstanding may on
behalf of all of the Holders of the Notes of such series waive
any past default or Event of Default hereunder and its
consequences except a default in the payment of principal of or
any premium or interest on the Notes of such series. Upon any
such waiver the Company, the Trustee and the Holders of the Notes
of such series shall be restored to their former positions and
rights hereunder, respectively, but no such waiver shall extend
to any subsequent or other default or Event of Default or impair
any right consequent thereon. Upon such waiver, such default
shall cease to exist and be deemed to have been cured and not to
be continuing, and any Event of Default arising therefrom shall
be deemed to have been cured and not to be continuing, for every
purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any
right consequent thereon.
Section 8.08 NOTICE OF DEFAULT. The Trustee shall, within 90
days after the occurrence of a default with respect to the Notes
of any series, give to all Holders of the Notes of such
32
series, in the manner provided in Section 15.10, notice of such
default actually known to the Trustee, unless such default shall
have been cured or waived before the giving of such notice, the
term "default" for the purpose of this Section 8.08 being hereby
defined to be any event which is or after notice or lapse of time
or both would become an Event of Default; provided that, except
in the case of default in the payment of the principal of or any
premium or interest on any of the Notes of such series, or in the
payment of any sinking or purchase fund installments, the Trustee
shall be protected in withholding such notice if and so long as
its board of directors or trustees, executive committee, or a
trust committee of directors or trustees or responsible officers
in good faith determines that the withholding of such notice is
in the interests of the Holders of the Notes of such series.
Section 8.09 UNDERTAKING TO PAY COSTS. All parties to this
Indenture agree, and each Holder of any Note by acceptance
thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right
or remedy under this Indenture or in any suit against the Trustee
for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to
pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses
made by such party litigant; but this Section 8.09 shall not
apply to any suit instituted by the Trustee, or to any suit
instituted by any Noteholder, or group of Noteholders, holding in
the aggregate more than 10% in principal amount of the Notes of
all series in respect of which such suit may be brought,
considered as one class, or to any suit instituted by any
Noteholder for the enforcement of the payment of the principal of
or any premium or interest on any Note on or after the due date
expressed in such Note or the applicable redemption date.
Section 8.10 RESTORATION OF RIGHTS ON ABANDONMENT OF
PROCEEDINGS. In case the Trustee or any Holder shall have
proceeded to enforce any right under this Indenture and such
proceedings shall have been discontinued or abandoned for any
reason, or shall have been determined adversely to the Trustee or
to such Holder, then, and in every such case, the Company, the
Trustee and the Holders shall be restored respectively to their
former positions and rights hereunder, and all rights, remedies
and powers of the Company, the Trustee and the Holders shall
continue as though no such proceedings had been taken.
Section 8.11 WAIVER OF USURY, STAY OR EXTENSION LAWS. The
Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury,
stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
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ARTICLE IX
CONCERNING THE TRUSTEE
Section 9.01 DUTIES AND RESPONSIBILITIES OF TRUSTEE.
(a) The Trustee, prior to the occurrence of an Event of
Default and after the curing of all Events of Default which may
have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. If an
Event of Default has occurred (which has not been cured or
waived), the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care
and skill in their exercise, as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
(b) No provisions of this Indenture shall be construed
to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act or its own willful
misconduct, except that:
(1) prior to the occurrence of any Event of Default and after
the curing or waiving of all Events of Default which may have
occurred:
(A) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable except
for the performance of such duties and obligations as
are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(B) in the absence of bad faith on the part of the Trustee,
the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the
requirements of this Indenture; but, in the case of
any such certificates or opinions which by any
provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not
they conform to the requirements of this Indenture (but
need not confirm or investigate the accuracy of
mathematical calculations or other facts stated
therein);
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or
Officers of the Trustee, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent
facts; and
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith
in accordance with the direction, pursuant to this
Indenture, of the Holders of a majority in aggregate
principal amount of the Notes of any one or more series,
as provided herein, including, but not limited to,
Section 8.07 hereof relating to the time, method and
place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or
power conferred upon the Trustee under this Indenture
with respect to the Notes of such series.
(c) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder,
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or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 9.02 RELIANCE ON DOCUMENTS, OPINIONS, ETC. Except as
otherwise provided in Section 9.01 hereof:
(a) the Trustee may conclusively rely and shall be
protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, note or other paper or document
believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request, direction, order or demand of the
Company mentioned herein shall be sufficiently evidenced by an
Officers' Certificate (unless other evidence in respect thereof
is herein specifically prescribed); and any Board Resolution may
be evidenced to the Trustee by a copy thereof certified by the
Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel of its
selection and any advice or Opinion of Counsel shall be full and
complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request, order or direction of any of the
Noteholders, pursuant to this Indenture, unless such Noteholders
shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities
which may be incurred by such exercise;
(e) the Trustee shall not be liable for any action
taken, suffered or omitted by it in good faith and believed by it
to be authorized or within the discretion or rights or powers
conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default
hereunder and after the curing or waiving of all Events of
Default, the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, note or other paper or document, unless
requested in writing to do so by the Holders of a majority in
aggregate principal amount of the then outstanding Notes of any
series; provided that if the payment within a reasonable time to
the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by this Indenture, the Trustee may
require indemnity satisfactory to it against such expense or
liability as a condition to so proceeding;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or
through agents or attorneys; provided that the Trustee shall not
be liable for the conduct or acts of any such agent or attorney
that shall have been appointed in accordance herewith with due
care; and
(h) the rights, privileges, protections, immunities
and benefits given to the Trustee, including, without limitation,
its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder,
and each agent, custodian and other Person employed to act
hereunder.
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Section 9.03 NO RESPONSIBILITY FOR RECITALS, ETC. The
recitals contained herein and in the Notes (except in the
certificate of authentication) shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Notes.
The Trustee shall not be accountable for the use or application
by the Company of any Notes or the proceeds of any Notes
authenticated and delivered by the Trustee in conformity with
this Indenture.
Section 9.04 TRUSTEE, AUTHENTICATING AGENT, PAYING AGENT OR
REGISTRAR MAY OWN NOTES. The Trustee and any Authenticating Agent
or paying agent in its individual or other capacity, may become
the owner or pledgee of Notes with the same rights it would have
if it were not Trustee, Authenticating Agent or paying agent.
Section 9.05 MONEYS TO BE HELD IN TRUST. Subject to Section
5.05 hereof, all moneys received by the Trustee shall, until used
or applied as herein provided, be held in trust for the purposes
for which they were received, but need not be segregated from
other funds except to the extent required by law. The Trustee
may allow and credit to the Company interest on any money
received hereunder at such rate, if any, as may be agreed upon by
the Company and the Trustee from time to time as may be permitted
by law.
Section 9.06 COMPENSATION AND EXPENSES OF TRUSTEE. The
Company covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to, such compensation as
the Company and the Trustee shall from time to time agree in writing
(which shall not be limited by any law in regard to the compensation
of a trustee of an express trust), and the Company shall pay or
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Trustee in accordance with this Indenture (including the
reasonable compensation and the reasonable expenses and
disbursements of its counsel and agents, including any
Authenticating Agents, and of all persons not regularly in its
employ) except any such expense, disbursement or advance as may
arise from its negligence or bad faith. The Company also
covenants to indemnify each of the Trustee or any predecessor and
their agents, directors, employees, and nominees for, and to
hold them harmless against, any loss, liability or expense
incurred without negligence or bad faith on the part of them
and arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses
of defending themselves against any claim or liability. The
obligations of the Company under this Section 9.06 to
compensate the Trustee and to pay or reimburse the Trustee for
expenses, disbursements and advances shall constitute additional
indebtedness hereunder. Such additional indebtedness shall be
secured by a lien prior to that of the Notes upon all property
and funds held or collected by the Trustee as such, except funds
held in trust for the benefit of the Holders of any particular
Notes. When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 801(a)(4)
or Section 801(a)(5), the expenses (including the reasonable
charges and expenses of its counsel) and the compensation for
the services are intended to constitute expenses of administration
under any applicable Federal or state bankruptcy, insolvency or
other similar law. The provisions of this Section 9.06 shall
survive termination of this Indenture.
Section 9.07 OFFICERS' CERTIFICATE AS EVIDENCE. Whenever in
the administration of this Indenture, the Trustee shall deem it
necessary or desirable that a matter be proved or established
prior to the taking, suffering or omitting of any action
hereunder, such matter (unless other evidence in respect thereof
is herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to
be conclusively proved and established by an Officers'
Certificate delivered to the Trustee, and such Officers'
Certificate, in the absence of negligence or bad faith on the
part of the Trustee, shall be full warrant to the Trustee for any
action taken, suffered or omitted by it under this Indenture in
reliance thereon.
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Section 9.08 CONFLICTING INTEREST OF TRUSTEE. The Trustee
shall be subject to and shall comply with the provisions of
Section 310(b) of the TIA. Nothing in this Indenture shall be
deemed to prohibit the Trustee or the Company from making any
application permitted pursuant to such section.
Section 9.09 EXISTENCE AND ELIGIBILITY OF TRUSTEE. There
shall at all times be a Trustee hereunder which Trustee shall at
all times be a corporation organized and doing business under the
laws of the United States or any State thereof or of the District
of Columbia having a combined capital and surplus of at least
$50,000,000 and which is authorized under such laws to exercise
corporate trust powers and is subject to supervision or
examination by Federal or State authorities. If such corporation
publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid authority, then for the
purposes of this Section 9.09, the combined capital and surplus
shall be deemed to be as set forth in its most recent report of
condition so published. No obligor upon the Notes or Person
directly or indirectly controlling, controlled by, or under
common control with such obligor shall serve as Trustee. If at
any time the Trustee shall cease to be eligible in accordance
with this Section 9.09, the Trustee shall resign immediately in
the manner and with the effect specified in Section 9.10 hereof.
Section 9.10 RESIGNATION OR REMOVAL OF TRUSTEE.
(a) Pursuant to the provisions of this Article, the
Trustee may at any time resign and be discharged of the trusts
created by this Indenture by giving written notice to the Company
specifying the day upon which such resignation shall take effect,
and such resignation shall take effect immediately upon the later
of the appointment of a successor trustee and such day.
(b) Any Trustee may be removed at any time with respect
to the Notes of any series by an instrument or concurrent
instruments in writing filed with such Trustee and signed and
acknowledged by the Holders of a majority in aggregate principal
amount of the then outstanding Notes of such series or by their
attorneys in fact duly authorized.
(c) So long as no Event of Default has occurred and is
continuing, and no event has occurred and is continuing that,
with the giving of notice or the lapse of time or both, would
become an Event of Default, the Company may remove any Trustee
upon written notice to the Holder of each Note Outstanding and
the Trustee and appoint a successor Trustee meeting the
requirements of Section 9.09. The Company or the successor
Trustee shall give notice to the Holders, in the manner provided
in Section 15.10, of such removal and appointment within 30 days
of such removal and appointment.
(d) If at any time (i) the Trustee shall cease to be
eligible in accordance with Section 9.09 hereof and shall fail to
resign after written request therefor by the Company or by any
Holder who has been a bona fide Holder for at least six months,
(ii) the Trustee shall fail to comply with Section 9.08 hereof
after written request therefor by the Company or any such Holder,
or (iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation,
then the Trustee may be removed forthwith by an instrument or
concurrent instruments in writing filed with the Trustee and
either:
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(1) signed by the Chairman, the President or any Vice
President of the Company and attested by the Secretary or
an Assistant Secretary of the Company; or
(2) signed and acknowledged by the Holders of a majority
in principal amount of outstanding Notes or by their
attorneys in fact duly authorized.
(e) Any resignation or removal of the Trustee shall not
become effective until acceptance of appointment by the successor
Trustee as provided in Section 9.11 hereof.
Section 9.11 APPOINTMENT OF SUCCESSOR TRUSTEE.
(a) If at any time the Trustee shall resign or be
removed, the Company, by a Board Resolution, shall promptly
appoint a successor Trustee.
(b) The Company shall provide written notice of its
appointment of a Successor Trustee to the Holder of each Note
Outstanding following any such appointment.
(c) If no appointment of a successor Trustee shall be
made pursuant to Section 9.11(a) hereof within 60 days after
appointment shall be required, any Noteholder or the resigning
Trustee may apply to any court of competent jurisdiction to
appoint a successor Trustee. Said court may thereupon after such
notice, if any, as such court may deem proper and prescribe,
appoint a successor Trustee.
(d) Any Trustee appointed under this Section 9.11 as a
successor Trustee shall be a bank or trust company eligible under
Section 9.09 hereof and qualified under Section 9.08 hereof.
Section 9.12 ACCEPTANCE BY SUCCESSOR TRUSTEE.
(a) Any successor Trustee appointed as provided in
Section 9.11 hereof shall execute, acknowledge and deliver to the
Company and to its predecessor Trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or
removal of the predecessor Trustee shall become effective and
such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers,
duties and obligations of its predecessor hereunder, with like
effect as if originally named as Trustee herein; but
nevertheless, on the written request of the Company or of the
successor Trustee, the Trustee ceasing to act shall, upon payment
of any amounts then due it pursuant to Section 9.06 hereof,
execute and deliver an instrument transferring to such successor
Trustee all the rights and powers of the Trustee so ceasing to
act. Upon request of any such successor Trustee, the Company
shall execute any and all instruments in writing in order more
fully and certainly to vest in and confirm to such successor
Trustee all such rights and powers. Any Trustee ceasing to act
shall, nevertheless, retain a lien upon all property or funds
held or collected by such Trustee to secure any amounts then due
it pursuant to Section 9.06 hereof.
(b) No successor Trustee shall accept appointment as
provided in this Section 9.12 unless at the time of such
acceptance such successor Trustee shall be qualified under
Section 9.08 hereof and eligible under Section 9.09 hereof.
(c) Upon acceptance of appointment by a successor
Trustee as provided in this Section 9.12, the successor Trustee
shall mail notice of its succession hereunder to all Holders of
Notes as the names and addresses of such Holders appear on the
registry books.
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Section 9.13 SUCCESSION BY MERGER, ETC.
(a) Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to or purchasing all or substantially all
of the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder without the execution or filing
of any paper or any further act on the part of any of the parties
hereto, provided such corporation shall be otherwise qualified
and eligible under this Article.
(b) If at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the Notes
shall have been authenticated but not delivered, any such
successor to the Trustee may adopt the certificate of
authentication of any predecessor Trustee, and deliver such Notes
so authenticated; and in case at that time any of the Notes shall
not have been authenticated, any successor to the Trustee may
authenticate such Notes either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all
such cases such certificates shall have the full force which it
is anywhere in the Notes or in this Indenture provided that the
certificates of the Trustee shall have; provided that the right
to adopt the certificate of authentication of any predecessor
Trustee or authenticate Notes in the name of any predecessor
Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
Section 9.14 LIMITATIONS ON RIGHTS OF TRUSTEE AS A CREDITOR.
The Trustee shall be subject to, and shall comply with, the
provisions of Section 311 of the TIA.
Section 9.15 AUTHENTICATING AGENT.
(a) There may be one or more Authenticating Agents
appointed by the Trustee with the written consent of the Company,
with power to act on its behalf and subject to the direction of
the Trustee in the authentication and delivery of Notes in
connection with transfers and exchanges under Sections 2.06,
2.07, 2.08, 2.13, 3.03, and 13.04 hereof, as fully to all intents
and purposes as though such Authenticating Agents had been
expressly authorized by those Sections to authenticate and
deliver Notes. For all purposes of this Indenture, the
authentication and delivery of Notes by any Authenticating Agent
pursuant to this Section 9.15 shall be deemed to be the
authentication and delivery of such Notes "by the Trustee." Any
such Authenticating Agent shall be a bank or trust company or
other Person of the character and qualifications set forth in
Section 9.09 hereof.
(b) Any corporation into which any Authenticating Agent
may be merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, conversion or
consolidation to which any Authenticating Agent shall be a party,
or any corporation succeeding to the corporate trust business of
any Authenticating Agent, shall be the successor of such
Authenticating Agent hereunder, if such successor corporation is
otherwise eligible under this Section 9.15, without the execution
or filing of any paper or any further act on the part of the
parties hereto or such Authenticating Agent or such successor
corporation.
(c) Any Authenticating Agent may at any time resign by
giving written notice of resignation to the Trustee and to the
Company. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to
such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon
39
such a termination, or in case at any time any Authenticating Agent
shall cease to be eligible under this Section 9.15, the Trustee
may, with the written consent of the Company, appoint a successor
Authenticating Agent, and upon so doing shall give written notice
of such appointment to the Company and shall mail, in the manner
provided in Section 15.10, notice of such appointment to the
Holders of Notes.
(d) The Trustee agrees to pay to each Authenticating
Agent from time to time reasonable compensation for its services,
and the Trustee shall be entitled to be reimbursed for such
payments, in accordance with Section 9.06 hereof.
(e) Sections 9.02, 9.03, 9.06, 9.07 and 9.09 hereof
shall be applicable to any Authenticating Agent.
ARTICLE X
CONCERNING THE NOTEHOLDERS
Section 10.01 ACTION BY NOTEHOLDERS. Whenever in this
Indenture it is provided that the Holders of a specified
percentage in aggregate principal amount of the Notes of any
series may take any action, the fact that at the time of taking
any such action the Holders of such specified percentage have
joined therein may be evidenced (a) by any instrument or any
number of instruments of similar tenor executed by such
Noteholders in person or by agent or proxy appointed in writing,
(b) by the record of such Noteholders voting in favor thereof at
any meeting of Noteholders duly called and held in accordance
with Article XI hereof, or (c) by a combination of such
instrument or instruments and any such record of such a meeting
of Noteholders.
Section 10.02 PROOF OF EXECUTION BY NOTEHOLDERS.
(a) Subject to Sections 9.01, 9.02 and 11.05 hereof,
proof of the execution of any instruments by a Noteholder or the
agent or proxy for such Noteholder shall be sufficient if made in
accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee. The ownership of Notes shall be
proved by the register for the Notes maintained by the Trustee.
(b) The record of any Noteholders' meeting shall be
proven in the manner provided in Section 11.06 hereof.
Section 10.03 PERSONS DEEMED ABSOLUTE OWNERS. Subject to
Sections 2.04(f) and 10.01 hereof, the Company, the Trustee, any
paying agent and any Authenticating Agent shall deem the person
in whose name any Note shall be registered upon the register for
the Notes to be, and shall treat such person as, the absolute
owner of such Note (whether or not such Note shall be overdue)
for the purpose of receiving payment of or on account of the
principal and premium, if any, and interest on such Note, and for
all other purposes; and neither the Company nor the Trustee nor
any paying agent nor any Authenticating Agent shall be affected
by any notice to the contrary. All such payments shall be valid
and effectual to satisfy and discharge the liability upon any
such Note to the extent of the sum or sums so paid.
Section 10.04 COMPANY-OWNED NOTES DISREGARDED. In
determining whether the Holders of the requisite aggregate
principal amount of outstanding Notes of any series have
concurred in any direction, consent or waiver under this
Indenture, Notes that are owned by the
40
Company or any other obligor on the Notes or by any person
directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company or any other
obligor on the Notes shall be disregarded and deemed not to be
outstanding for the purpose of any such determination; provided
that, for the purposes of determining whether the Trustee shall
be protected in relying on any such direction, consent or
waiver, only Notes which a Responsible Officer of the Trustee
actually knows are so owned shall be so disregarded. Notes so
owned which have been pledged in good faith to third parties
may be regarded as outstanding for the purposes of this
Section 10.04 if the pledgee shall establish the pledgee's
right to take action with respect to such Notes and that
the pledgee is not a person directly or indirectly controlling
or controlled by or under direct or indirect common control
with the Company or any such other obligor. In the case of
a dispute as to such right, the Trustee may rely upon an
Opinion of Counsel and an Officers' Certificate to establish
the foregoing.
Section 10.05 REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND.
Except as may be otherwise required in the case of a Global Note
by the applicable rules and regulations of the Depositary, at any
time prior to the taking of any action by the Holders of the
percentage in aggregate principal amount of the Notes of any
series specified in this Indenture in connection with such
action, any Holder of a Note, which has been included in the
Notes the Holders of which have consented to such action may, by
filing written notice with the Trustee at the corporate trust
office of the Trustee and upon proof of ownership as provided in
Section 10.02(a) hereof, revoke such action so far as it concerns
such Note. Except as aforesaid, any such action taken by the
Holder of any Note shall be conclusive and binding upon such
Holder and upon all future Holders and owners of such Note and of
any Notes issued in exchange, substitution or upon registration
of transfer therefor, irrespective of whether or not any notation
thereof is made upon such Note or such other Notes.
Section 10.06 RECORD DATE FOR NOTEHOLDER ACTS. If the
Company shall solicit from the Noteholders any request, demand,
authorization, direction, notice, consent, waiver or other act,
the Company may, at its option, by Board Resolution, fix in
advance a record date for the determination of Noteholders
entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other act, but the Company shall have
no obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent,
waiver or other act may be given before or after the record date,
but only the Noteholders of record at the close of business on
the record date shall be deemed to be Noteholders for the purpose
of determining whether Holders of the requisite aggregate
principal amount of outstanding Notes have authorized or agreed
or consented to such request, demand, authorization, direction,
notice, consent, waiver or other act, and for that purpose the
outstanding Notes shall be computed as of the record date;
provided that no such request, demand, authorization, direction,
notice, consent, waiver or other act by the Noteholders on the
record date shall be deemed effective unless it shall become
effective pursuant to this Indenture not later than six months
after the record date. Any such record date shall be at least 30
days prior to the date of the solicitation to the Noteholders by
the Company.
ARTICLE XI
NOTEHOLDERS' MEETING
Section 11.01 PURPOSES OF MEETINGS. A meeting of Noteholders
may be called at any time and from time to time pursuant to this
Article XI for any of the following purposes:
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(a) to give any notice to the Company or to the Trustee, or
to give any directions to the Trustee, or to consent to the
waiving of any Event of Default hereunder and its
consequences, or to take any other action authorized to be
taken by Noteholders pursuant to Article XIII;
(b) to remove the Trustee pursuant to Article IX;
(c) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to Section 13.02
hereof; or
(d) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal
amount of the Notes of any series, as the case may be, under
any other provision of this Indenture or under applicable
law.
Section 11.02 CALL OF MEETINGS BY TRUSTEE. The Trustee may
at any time call a meeting of Holders of Notes to take any action
specified in Section 11.01 hereof, to be held at such time and at
such place as the Trustee shall determine. Notice of every such
meeting of Noteholders, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken
at such meeting, shall be given to Holders of the Notes that may
be affected by the action proposed to be taken at such meeting in
the manner provided in Section 15.10 hereof. Such notice shall be
given not less than 20 nor more than 90 days prior to the date
fixed for such meeting.
Section 11.03 CALL OF MEETINGS BY COMPANY OR NOTEHOLDERS. If
at any time the Company, pursuant to a Board Resolution, or the
Holders of at least 10% in aggregate principal amount of the
Notes of all series then outstanding, considered as one class,
shall have requested the Trustee to call a meeting of
Noteholders, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the
Trustee shall not have mailed the notice of such meeting within
20 days after receipt of such request, then the Company or such
Noteholders may determine the time and the place for such meeting
and may call such meeting to take any action authorized in
Section 11.01 hereof, by giving notice thereof as provided in
Section 11.02 hereof.
Section 11.04 QUALIFICATIONS FOR VOTING. To be entitled to
vote at any meetings of Noteholders a Person shall (a) be a
Holder of one or more Notes affected by the action proposed to be
taken or (b) be a Person appointed by an instrument in writing as
proxy by a Holder of one or more such Notes. The only Persons who
shall be entitled to be present or to speak at any meeting of
Noteholders shall be the Persons entitled to vote at such meeting
and their counsel and any representatives (including employees)
of the Trustee and its counsel and any representatives (including
employees) of the Company and its counsel.
Section 11.05 REGULATIONS.
(a) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it
may deem advisable for any meeting of Noteholders in regard to
proof of the holding of Notes and of the appointment of proxies,
and in regard to the appointment and duties of inspectors of
votes, the submission and examination of proxies, certificates
andother evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall think fit.
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(b) The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting
shall have been called by the Company or by the Noteholders as
provided in Section 11.03 hereof, in which case the Company or
Noteholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman
and a permanent secretary of the meeting shall be elected by the
Holders of a majority in aggregate principal amount of the Notes
present in person or by proxy at the meeting.
(c) Subject to Section 10.04 hereof, at any meeting
each Noteholder or proxy shall be entitled to one vote for each
$1,000 principal amount of Notes held or represented by such
Noteholder; provided that no vote shall be cast or counted at any
meeting in respect of any Note determined to be not outstanding.
The chairman of the meeting shall have no right to vote other
than by virtue of Notes held by such chairman or instruments in
writing as aforesaid duly designating such chairman as the person
to vote on behalf of other Noteholders. At any meeting of
Noteholders duly called pursuant to Section 11.02 or 11.03
hereof, the presence of persons holding or representing Notes in
an aggregate principal amount sufficient to take action on any
business for the transaction for which such meeting was called
shall constitute a quorum. Any meeting of Noteholders duly called
pursuant to Section 11.02 or 11.03 hereof may be adjourned from
time to time by the Holders of a majority in aggregate principal
amount of the Notes present in person or by proxy at the meeting,
whether or not constituting a quorum, and the meeting may be held
as so adjourned without further notice.
Section 11.06 VOTING. The vote upon any resolution submitted
to any meeting of Noteholders shall be by written ballots on
which shall be subscribed the signatures of the Holders of Notes
or of their representatives by proxy and the principal amount of
Notes held or represented by them. The permanent chairman of the
meeting shall appoint two inspectors of votes who shall count all
votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of such meeting
of Noteholders shall be prepared by the secretary of the meeting
and there shall be attached to said record the original reports
of the inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 11.02
hereof. The record shall show the aggregate principal amount of
the Notes voting in favor of or against any resolution. The
record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the
Trustee to be preserved by the Trustee and the Trustee shall have
the ballots taken at the meeting attached to such duplicate. Any
record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 11.07 RIGHTS OF TRUSTEE OR NOTEHOLDERS NOT DELAYED.
Nothing in this Article XI shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of
Noteholders or any rights expressly or impliedly conferred
hereunder to make such call, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the
Trustee or to the Holders of Notes under any of the provisions of
this Indenture or of the Notes.
43
ARTICLE XII
CONSOLIDATION, MERGER, SALE, TRANSFER OR CONVEYANCE
Section 12.01 COMPANY MAY CONSOLIDATE, ETC. ONLY ON CERTAIN
TERMS. The Company shall not consolidate with or merge into any
other corporation or sell or otherwise dispose of its properties
as or substantially as an entirety to any Person unless the
Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel each stating that such consolidation,
merger, conveyance or transfer and the supplemental indenture
referred to in clause (b) below comply with this Article XII and
that all conditions precedent herein provided for have been
complied with, and the corporation formed by such consolidation
or into which the Company is merged or the Person which receives
such properties pursuant to such sale, transfer or other
disposition (a) shall be a corporation organized and existing
under the laws of the United States of America, any state thereof
or the District of Columbia; and (b) shall expressly assume, by
an indenture supplemental hereto, executed and delivered to the
Trustee, in form reasonably satisfactory to the Trustee, the due
and punctual payment of the principal of and premium and interest
on all of the Notes and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed.
Section 12.02 SUCCESSOR CORPORATION SUBSTITUTED. Upon any
consolidation or merger, or any sale, transfer or other
disposition of the properties of the Company substantially as an
entirety in accordance with Section 12.01 hereof, the successor
corporation formed by such consolidation or into which the
Company is merged or the Person to which such sale, transfer or
other disposition is made shall succeed to, and be substituted
for and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor
corporation or Person had been named as the Company herein and
the Company shall be released from all obligations hereunder.
ARTICLE XIII
SUPPLEMENTAL INDENTURES
Section 13.01 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
NOTEHOLDERS.
(a) The Company, when authorized by Board Resolution,
and the Trustee may from time to time and at any time enter into
an indenture or indentures supplemental hereto for one or more of
the following purposes:
(1) to make such provision in regard to matters or
questions arising under this Indenture as may be
necessary or desirable, and not inconsistent with this
Indenture or prejudicial to the interests of the Holders
in any material respect, for the purpose of supplying any
omission, curing any ambiguity, or curing, correcting or
supplementing any defective or inconsistent provision;
(2) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination
shall become effective only when there is no Note
outstanding created prior to the execution of such
supplemental indenture which is entitled to the benefit
of such provision or such change or elimination is
applicable only to Notes issued after the effective date
of such change or elimination;
44
(3) to establish the form of Notes of any series as
permitted by Section 2.01 hereof or to establish or
reflect any terms of any Note of any series determined
pursuant to Section 2.05 hereof;
(4) to evidence the succession of another corporation to
the Company as permitted hereunder, and the assumption by
any such successor of the covenants of the Company herein
and in the Notes;
(5) to grant to or confer upon the Trustee for the
benefit of the Holders any additional rights, remedies,
powers or authority;
(6) to permit the Trustee to comply with any
duties imposed upon it by law;
(7) to specify further the duties and responsibilities
of, and to define further the relationships among, the
Trustee, any Authenticating Agent and any paying agent,
and to evidence the succession of a successor Trustee as
permitted hereunder;
(8) to add to the covenants of the Company for the
benefit of the Holders of one or more series of Notes, to
add to the security for all of the Notes, to surrender a
right or power conferred on the Company herein or to add
any Event of Default with respect to one or more series
of Notes; and
(9) to make any other change that is not
prejudicial to the Holders.
(b) The Trustee is hereby authorized to join with the
Company in the execution of any such supplemental indenture, to
make any further appropriate agreements and stipulations which
may be therein contained and to accept the conveyance, transfer
and assignment of any property thereunder, but the Trustee shall
not be obligated to enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise.
(c) Any supplemental indenture authorized by this
Section 13.01 may be executed by the Company and the Trustee
without the consent of the Holders of any of the Notes at the
time outstanding, notwithstanding any of the provisions of
Section 13.02 hereof.
Section 13.02 SUPPLEMENTAL INDENTURES WITH CONSENT OF
NOTEHOLDERS.
(a) With the consent (evidenced as provided in Section
10.01 hereof) of the Holders of a majority in aggregate principal
amount of the Notes of all series at the time outstanding,
considered as one class, the Company, when authorized by Board
Resolution, and the Trustee may from time to time and at any time
enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture or of any
supplemental indenture or of modifying or waiving in any manner
the rights of the Noteholders; provided, however, that if there
shall be Notes of more than one series Outstanding hereunder and
if a proposed supplemental indenture shall directly affect the
rights of the Holders of Notes of one or more, but less than all,
of such series, then the consent only of the Holders of a
majority in aggregate principal amount of the Outstanding Notes
of all series so directly affected, considered as one class,
shall be required; provided further that no such supplemental
indenture shall:
45
(1) change the Stated Maturity of any Note, or reduce the
rate (or change the method of calculation thereof) or
extend the time of payment of interest thereon, or reduce
the principal amount thereof or any premium thereon, or
change the coin or currency in which the principal of any
Note or any premium or interest thereon is payable, or
change the date on which any Note may be redeemed or
adversely affect the rights of the Noteholders to
institute suit for the enforcement of any payment of
principal of or any premium or interest on any Note, in
each case without the consent of the Holder of each Note
so affected; or
(2) modify this Section 13.02(a) or reduce the aforesaid
percentage of Notes, the Holders of which are required to
consent to any such supplemental indenture or to reduce
the percentage of Notes, the Holders of which are
required to waive Events of Default, in each case,
without the consent of the Holders of all of the Notes
affected thereby then outstanding.
(b) Upon the request of the Company, accompanied by a
copy of the Board Resolution authorizing the execution of any
such supplemental indenture, and upon the filing with the Trustee
of evidence of the consent of Noteholders as aforesaid, the
Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects
the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such
supplemental indenture.
(c) A supplemental indenture which changes, waives or
eliminates any covenant or other provision of this Indenture (or
any supplemental indenture) which has expressly been included
solely for the benefit of one or more series of Notes, or which
modifies the rights of the Holders of Notes of such series with
respect to such covenant or provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Notes of
any other series.
(d) It shall not be necessary for the consent of the
Holders of Notes under this Section 13.02 to approve the
particular form of any proposed supplemental indenture, but it
shall be sufficient if such consent shall approve the substance
thereof.
(e) Promptly after the execution by the Company and the
Trustee of any supplemental indenture pursuant to this Section
13.02, the Trustee shall give notice in the manner provided in
Section 15.10 hereof, setting forth in general terms the
substance of such supplemental indenture, to all Noteholders. Any
failure of the Trustee to give such notice or any defect therein
shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
Section 13.03 COMPLIANCE WITH TRUST INDENTURE ACT; EFFECT OF
SUPPLEMENTAL INDENTURES. Any supplemental indenture executed
pursuant to this Article XIII shall comply with the TIA. Upon the
execution of any supplemental indenture pursuant to this Article
XIII, the Indenture shall be and be deemed to be modified and
amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under
this Indenture of the Trustee, the Company and the Noteholders
shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and
all the terms and conditions of any such supplemental indenture
shall be and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.
46
Section 13.04 NOTATION ON NOTES. Notes of any series
authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article XIII may bear a
notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall
so determine, new Notes of any series so modified as approved by
the Trustee and the Board of Directors with respect to any
modification of this Indenture contained in any such supplemental
indenture may be prepared and executed by the Company,
authenticated by the Trustee and delivered in exchange for the
Notes of such series then outstanding.
Section 13.05 EVIDENCE OF COMPLIANCE OF SUPPLEMENTAL
INDENTURE TO BE FURNISHED TRUSTEE. The Trustee, subject to
Sections 9.01 and 9.02 hereof, shall receive an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that
any supplemental indenture executed pursuant hereto complies with
the requirements of this Article XIII.
ARTICLE XIV
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 14.01 INDENTURE AND NOTES SOLELY CORPORATE
OBLIGATIONS. No recourse for the payment of the principal of or
any premium or interest on any Note, or for any claim based
thereon or otherwise in respect thereof, and no recourse under or
upon any obligation, covenant or agreement of the Company,
contained in this Indenture, or in any supplemental indenture, or
in any Note, or because of the creation of any indebtedness
represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or
future, of the Company or of any successor corporation, either
directly or through the Company or any successor corporation,
whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it
being expressly understood that all such liability is hereby
expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the
issuance of the Notes.
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.01 PROVISIONS BINDING ON COMPANY'S SUCCESSORS.
All the covenants, stipulations, promises and agreements made by
the Company in this Indenture shall bind its successors and
assigns whether so expressed or not.
Section 15.02 OFFICIAL ACTS BY SUCCESSOR CORPORATION. Any
act or proceeding by any provision of this Indenture authorized
or required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with
like force and effect by the like board, committee or officer of
any corporation that shall at the time be the lawful successor of
the Company.
Section 15.03 NOTICES. Any notice or demand which by any
provision of this Indenture is required or permitted to be given
or served by the Trustee or by the Noteholders on the Company may
be given or served by being deposited postage prepaid in a post
office letter box addressed (until another address is filed by
the Company with the Trustee) at the Principal Executive Offices
of the Company, to the attention of the Secretary. Any notice,
direction,
47
request or demand by any Noteholder or the Company to
or upon the Trustee shall be deemed to have been sufficiently
given or made, for all purposes, if given or made in writing at
the Corporate Trust Office of the Trustee, Attention: Corporate
Trust Administration.
Section 15.04 GOVERNING LAW. This Indenture and each Note
shall be governed by and deemed to be a contract under, and
construed in accordance with, the laws of the State of New York,
and for all purposes shall be construed in accordance with the
laws of said State without regard to conflicts of law principles
thereof.
Section 15.05 EVIDENCE OF COMPLIANCE WITH CONDITIONS
PRECEDENT.
(a) Upon any application or demand by the Company to
the Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee an Officers' Certificate stating
that all conditions precedent, if any, provided for in this
Indenture (including any covenants compliance with which
constitutes a condition precedent) relating to the proposed
action have been complied with and an Opinion of Counsel stating
that, in the opinion of such counsel, all such conditions
precedent have been complied with.
(b) Each certificate or opinion provided for in this
Indenture and delivered to the Trustee with respect to compliance
with a condition or covenant provided for in this Indenture
(other than the certificates delivered pursuant to Section 6.06
hereof) shall include (1) a statement that each Person making
such certificate or opinion has read such covenant or condition
and the definitions relating thereto; (2) a brief statement as to
the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or
opinion are based; (3) a statement that, in the opinion of each
such Person, such Person has made such examination or
investigation as is necessary to enable such Person to express an
informed opinion as to whether or not such covenant or condition
has been complied with; and (4) a statement as to whether or not,
in the opinion of each such Person, such condition or covenant
has been complied with.
(c) In any case where several matters are required to
be certified by, or covered by an opinion of, any specified
Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some
matters and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to such
matters in one or several documents.
(d) Any certificate or opinion of an officer of the
Company may be based, insofar as it relates to legal matters,
upon a certificate or opinion of, or representations by, counsel,
unless such officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations
with respect to the matters upon which such certificate or
opinion is based are erroneous. Any such certificate or opinion
of counsel delivered under the Indenture may be based, insofar as
it relates to factual matters, upon a certificate or opinion of,
or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters
is in the possession of the Company, unless such person knows, or
in the exercise of reasonable care should know, that the
certificate or opinion of representations with respect to such
matters are erroneous. Any opinion of counsel delivered hereunder
may contain standard exceptions and qualifications reasonably
satisfactory to the Trustee.
48
(e) Any certificate, statement or opinion of any
officer of the Company, or of counsel, may be based, insofar as
it relates to accounting matters, upon a certificate or opinion
of or representations by an independent public accountant or firm
of accountants, unless such officer or counsel, as the case may
be, knows that the certificate or opinions or representations
with respect to the accounting matters upon which the
certificate, statement or opinion of such officer or counsel may
be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous. Any
certificate or opinion of any firm of independent public
accountants filed with the Trustee shall contain a statement that
such firm is independent.
(f) Where any Person is required to make, give or
execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments under
this Indenture, they may, but need not, be consolidated and form
one instrument.
Section 15.06 BUSINESS DAYS. Unless otherwise provided
pursuant to Section 2.05(c) hereof, in any case where the date of
Maturity of the principal of or any premium or interest on any
Note or the date fixed for redemption of any Note is not a
Business Day, then payment of such principal or any premium or
interest need not be made on such date but may be made on the
next succeeding Business Day with the same force and effect as if
made on the date of Maturity or the date fixed for redemption,
and, in the case of timely payment thereof, no interest shall
accrue for the period from and after such Interest Payment Date
or the date on which the principal or premium of the Note is
required to be paid.
Section 15.07 TRUST INDENTURE ACT TO CONTROL. If and to the
extent that any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by the TIA, such required
provision of the TIA shall govern.
Section 15.08 TABLE OF CONTENTS, HEADINGS, ETC. The table of
contents and the titles and headings of the articles and sections
of this Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
Section 15.09 EXECUTION IN COUNTERPARTS. This Indenture may
be executed in any number of counterparts, each of which shall be
an original, but such counterparts shall together constitute but
one and the same instrument.
Section 15.10 MANNER OF MAILING NOTICE TO NOTEHOLDERS.
(a) Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the
Trustee or the Company to or on the Holders of Notes, as the case
may be, shall be given or served by first-class mail, postage
prepaid, addressed to the Holders of such Notes at their last
addresses as the same appear on the register for the Notes
referred to in Section 2.06, and any such notice shall be deemed
to be given or served by being deposited in a post office letter
box in the form and manner provided in this Section 15.10. In
case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give
notice to any Holder by mail, then such notification to such
Holder as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
(b) The Company shall also provide any notices required
under this Indenture by publication, but only to the extent that
such publication is required by the TIA, the rules and
49
regulations of the Commission or any securities exchange upon
which any series of Notes is listed.
Section 15.11 APPROVAL BY TRUSTEE OF COUNSEL. Wherever the
Trustee is required to approve counsel who is to furnish evidence
of compliance with conditions precedent in this Indenture, such
approval by the Trustee shall be deemed to have been given upon
the taking of any action by the Trustee pursuant to and in
accordance with the certificate or opinion so furnished by such
counsel.
50
IN WITNESS WHEREOF, GREAT PLAINS ENERGY INCORPORATED has
caused this Indenture to be signed and acknowledged by its Vice
President of Finance, Chief Financial Officer, and Treasurer, and
attested by its Senior Vice President - Corporate Services and
Secretary, and THE BANK OF NEW YORK has caused this Indenture to
be signed and acknowledged by its Vice President, as of the day
and year first written above.
GREAT PLAINS ENERGY INCORPORATED
By _______________________________
Vice President - Finance, Chief
Financial Officer and Treasurer
ATTEST:
- --------------------------------
Senior Vice President - Corporate
Services and Secretary
THE BANK OF NEW YORK,
AS TRUSTEE
By
______________________________
Vice President
51
INDENTURE FOR SUBORDINATED DEBT SECURITIES
EXHIBIT 4.e.
============================================================
GREAT PLAINS ENERGY INCORPORATED
AND
_________________________,
TRUSTEE
-----------------
FORM OF INDENTURE
(FOR SUBORDINATED DEBT SECURITIES)
DATED AS OF _______, 200_
=================================================================
i
CROSS REFERENCE SHEET SHOWING THE LOCATION IN THEINDENTURE OF THE
PROVISIONS INSERTED CORRELATIVE TO SECTIONS 310 THROUGH 318(a),
INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939
INDENTURE
SECTION OF ACT SECTION
- -------------- --------------
310 (a)(1).................................... 9.09
(a)(2).................................... 9.09
(a)(3).................................... Not Applicable
(a)(4).................................... Not Applicable
(a)(5).................................... 9.09
(b) ...................................... 9.08
(c) ...................................... Not Applicable
311 (a) ...................................... 9.14
(b) ...................................... 9.14
(c) ...................................... Not Applicable
312 (a) ...................................... 7.01 and 7.02(a)
(b) ...................................... 7.02(b)
(c) ...................................... 7.02(c)
313 (a) ...................................... 7.04(a)
(b) ...................................... 7.04(b)
(c) ...................................... 7.04(d)
(d) ...................................... 7.04(c)
314 (a) ...................................... 7.03 and 6.06
(b) ...................................... 6.05
(c)(1).................................... 1.03 and 16.05
(c)(2).................................... 1.03 and 16.05
(c)(3).................................... Not Applicable
(d) ...................................... 1.03 and 4.06
(e) ...................................... 16.05(b)
(f) ...................................... Not Applicable
315 (a) ...................................... 9.01
(b) ...................................... 8.08
(c) ...................................... 9.01(a)
(d) ...................................... 9.01(b)
(e) ...................................... 8.09
316 (a) ...................................... 8.07 and 10.04
(b) ...................................... 8.04(b) and 13.02
(c) ...................................... 10.06
317 (a)(1).................................... 8.02(b)
(a)(2).................................... 8.02(c)
(b) ...................................... 5.02 and 6.04
318 (a) ...................................... 16.07
- -------------------
NOTE: This Cross Reference Sheet is not, for any purpose,
deemed to be a part of the Indenture.
ii
TABLE OF CONTENTS*
PARTIES 1
RECITALS 1
ARTICLE ONE
DEFINITIONS
SECTION 1.01 General 1
SECTION 1.02 Trust Indenture Act 2
SECTION 1.03 Definitions 2
ARTICLE TWO
FORM, ISSUE, EXECUTION, REGISTRATION, AND EXCHANGE OF NOTES
SECTION 2.01 Forms Generally 6
SECTION 2.02 Form of Trustee's Certificate of 6
Authentication
SECTION 2.03 Amount Unlimited 6
SECTION 2.04 Denominations, Dates, Interest Payment and 6
Record Dates
SECTION 2.05 Execution, Authentication, Delivery,and 7
Dating
SECTION 2.06 Exchange and Registration of Transfer of 10
Notes
SECTION 2.07 Mutilated, Destroyed, Lost or Stolen Notes 11
SECTION 2.08 Temporary Notes 11
SECTION 2.09 Cancellation of Notes Paid, Etc. 12
SECTION 2.10 Interest Rights Preserved 12
SECTION 2.11 Special Record Date 12
SECTION 2.12 Payment of Notes 12
SECTION 2.13 Notes Issuable in the Form of a Global Note 13
SECTION 2.14 CUSIP and ISIN Numbers 15
SECTION 2.15 Extension of Interest Payment Periods 15
ARTICLE THREE
REDEMPTION OF NOTES
SECTION 3.01 Applicability of Article 15
SECTION 3.02 Notice of Redemption; Selection of Notes 15
SECTION 3.03 Payment of Notes on Redemption; Deposit of 16
Redemption Price
ARTICLE FOUR
SINKING FUNDS
SECTION 4.01 Applicability of Article 17
SECTION 4.02. Satisfaction of Sinking Fund Payments with 18
Notes
SECTION 4.03. Redemption of Notes for Sinking Funds 18
* The Table of Contents is not part of the Indenture.
iii
ARTICLE FIVE
SATISFACTION AND DISCHARGE; UNCLAIMED MONEYS
SECTION 5.01 Satisfaction and Discharge of Indenture 18
SECTION 5.02 Application of Trust Funds; Indemnification 19
SECTION 5.03 Legal Defeasance 20
SECTION 5.04 Covenant Defeasance 21
SECTION 5.05 Repayment to Company 22
ARTICLE SIX
PARTICULAR COVENANTS OF THE COMPANY
SECTION 6.01 Payment of Principal and Interest 22
SECTION 6.02 Offices for Payments, Etc. 22
SECTION 6.03 Appointment to Fill a Vacancy in Office of 23
Trustee
SECTION 6.04 Provision as to Paying Agent 23
SECTION 6.05 Corporate Existence 24
SECTION 6.06 Certificates and Notice to Trustee 24
ARTICLE SEVEN
NOTEHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 7.01 Company to Furnish Noteholder Lists 24
SECTION 7.02 Preservation and Disclosure of Noteholder 24
Lists
SECTION 7.03 Reports by the Company 25
SECTION 7.04 Reports by the Trustee 26
ARTICLE EIGHT
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS ON EVENTS OF DEFAULT
SECTION 8.01 Events of Default 27
SECTION 8.02 Collection of Indebtedness by Trustee; 29
Trustee May Prove Debt
SECTION 8.03 Application of Proceeds 30
SECTION 8.04 Limitations on Suits by Noteholders 31
SECTION 8.05 Suits for Enforcement 32
SECTION 8.06 Powers and Remedies Cumulative; Delay or 32
Omission Not Waiver of Default
SECTION 8.07 Direction of Proceedings and Waiver of 32
Defaults by Majority of Noteholders
SECTION 8.08 Notice of Default 33
SECTION 8.09 Undertaking to Pay Costs 33
SECTION 8.10 Restoration of Rights on Abandonment of 33
Proceedings
SECTION 8.11 Waiver of Usury, Stay, or Extension Laws 33
iv
ARTICLE NINE
CONCERNING THE TRUSTEE
SECTION 9.01 Duties and Responsibilities of Trustee 34
SECTION 9.02 Reliance on Documents, Opinions, Etc. 35
SECTION 9.03 No Responsibility for Recitals, etc. 36
SECTION 9.04 Trustee, Authenticating Agent, Paying Agent 36
or Registrar May Own Notes
SECTION 9.05 Moneys to be Held in Trust 36
SECTION 9.06 Compensation and Expenses of Trustee 36
SECTION 9.07 Officers' Certificate as Evidence 36
SECTION 9.08 Conflicting Interest of Trustee 37
SECTION 9.09 Existence and Eligibility of Trustee 37
SECTION 9.10 Resignation or Removal of Trustee 37
SECTION 9.11 Appointment of Successor Trustee 38
SECTION 9.12 Acceptance by Successor Trustee 38
SECTION 9.13 Succession by Merger, Etc. 39
SECTION 9.14 Limitations on Rights of Trustee as a 39
Creditor
SECTION 9.15 Authenticating Agent 39
ARTICLE TEN
CONCERNING THE NOTEHOLDERS
SECTION 10.01 Action Taken by Noteholders 40
SECTION 10.02 Proof of Execution by Noteholders 40
SECTION 10.03 Persons Deemed Absolute Owners 40
SECTION 10.04 Company-Owned Notes Disregarded 40
SECTION 10.05 Revocation of Consents; Future Holders 41
Bound
SECTION 10.06 Record Date for Noteholder Acts 41
ARTICLE ELEVEN
NOTEHOLDERS' MEETING
SECTION 11.01 Purposes of Meeting 41
SECTION 11.02 Call of Meetings by Trustee 42
SECTION 11.03 Call of Meetings by Company or Noteholders 42
SECTION 11.04 Qualifications for Voting 42
SECTION 11.05 Regulations 42
SECTION 11.06 Voting 43
SECTION 11.07 Rights of Trustee or Noteholders Not 43
Delayed
ARTICLE TWELVE
CONSOLIDATION, MERGER, SALE, TRANSFER OR CONVEYANCE
SECTION 12.01 Company May Consolidate, Etc. Only on 44
Certain Terms
SECTION 12.02 Successor Corporation Substituted 44
v
ARTICLE THIRTEEN
SUPPLEMENTAL INDENTURES
SECTION 13.01 Supplemental Indentures Without Consent of 44
Noteholders
SECTION 13.02 Supplemental Indentures With Consent of 45
Noteholders
SECTION 13.03 Compliance with Trust Indenture Act; Effect 46
of Supplemental Indentures
SECTION 13.04 Notation on Notes 47
SECTION 13.05 Evidence of Compliance of Supplemental 47
Indenture to be Furnished Trustee
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS, AND DIRECTORS
SECTION 14.01 Indenture and Notes Solely Corporate 47
Obligations
ARTICLE FIFTEEN
SUBORDINATION OF NOTES
SECTION 15.01 Notes Subordinate to Senior Indebtedness 47
SECTION 15.02 Payment Over of Proceeds of Notes 47
SECTION 15.03 Disputes with Holders of Certain Senior 49
Indebtedness
SECTION 15.04 Subrogation 49
SECTION 15.05 Obligation of Company Unconditional 49
SECTION 15.06 Priority of Senior Indebtedness Upon 50
Maturity
SECTION 15.07 Trustee as a Holder of Senior Indebtedness 50
SECTION 15.08 Notice to Trustee to Effect Subordination 50
SECTION 15.09 Modification, Extension, Etc. of Senior 50
Indebtedness
SECTION 15.10 Trustee Has No Fiduciary Duty to Holders of 51
Senior Indebtedness
SECTION 15.11 Paying Agents Other Than Trustee 51
SECTION 15.12 Rights of Holders of Senior Indebtedness 51
Not Impaired
SECTION 15.13 Effect of Subordination Provisions; 51
Termination
vi
ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS
SECTION 16.01 Provisions Binding on Company's Successors 51
SECTION 16.02 Official Acts by Successor Corporation 52
SECTION 16.03 Notices 52
SECTION 16.04 Governing Law 52
SECTION 16.05 Evidence of Compliance with Conditions 52
Precedent
SECTION 16.06 Business Days 53
SECTION 16.07 Trust Indenture Act to Control 53
SECTION 16.08 Table of Contents, Headings, Etc. 53
SECTION 16.09 Execution in Counterparts 53
SECTION 16.10 Manner of Mailing Notice to Noteholders 53
SECTION 16.11 Approval by Trustee of Counsel 54
TESTIMONIUM 55
SIGNATURES AND SEALS 55
ACKNOWLEDGMENTS 55
vii
THIS INDENTURE, dated as of __________, 200_,
between GREAT PLAINS ENERGY INCORPORATED, a corporation
duly organized and existing under the laws of the State
of Missouri (the "COMPANY"), and ______________________, a
New York banking company, as trustee (the "TRUSTEE").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, for its lawful corporate purposes, the
Company has duly authorized the execution and
delivery of this Indenture to provide for the
issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of
indebtedness (the "Notes"), to be issued in one or
more series as in this Indenture provided; and
WHEREAS, all acts and things necessary to make
this Indenture a valid agreement according to its
terms have been done and performed, and the execution
of this Indenture and the issue hereunder of the
Notes have in all respects been duly authorized;
NOW THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and
conditions upon which the Notes are, and are to be
authenticated, issued and delivered, and in
consideration of the premises, of the purchase and
acceptance of the Notes by the Holders thereof and of
the sum of one dollar duly paid to it by the Trustee
at the execution of this Indenture, the receipt whereof is
hereby acknowledged, the Company covenants and agrees
with the Trustee for the equal and proportionate
benefit of the respective Holders from time to time
of the Notes or of any series thereof, as follows:
ARTICLE I
DEFINITIONS
Section 1.01 GENERAL.
(a) The terms defined in this Article I (whether
or not capitalized and except as herein otherwise
expressly provided or unless the context otherwise
requires) for all purposes of this Indenture and of
any indenture supplemental hereto or Company Order
(as hereinafter defined) shall have the respective
meanings specified in this Article I.
(b) All accounting terms used herein and not
expressly defined herein shall have the meanings
assigned to them in accordance with generally accepted
accounting principles in the United States of America,
and, except as otherwise herein expressly provided, the
term "generally accepted accounting principles" with
respect to any computation required or permitted
hereunder shall mean such accounting principles as
are generally accepted in the United States of
America at the date of such computation; PROVIDED,
that when two or more principles are so generally
accepted, it shall mean that set of principles
consistent with those in use by the Company.
1
Section 1.02 TRUST INDENTURE ACT.
(a) Whenever this Indenture refers to a provision of
the Trust Indenture Act of 1939 (the "TIA"), such
provision is incorporated by reference in and made a
part of this Indenture.
(b) Unless otherwise indicated, all terms used in
this Indenture that are defined by the TIA, defined by the
TIA by reference to another statute or defined by a
rule of the Commission under the TIA shall have the
meanings assigned to them in the TIA or such statute
or rule as in force on the date of execution of this
Indenture.
(c) The Company and the Trustee agree to comply
with the TIA notwithstanding any exemption that may
be available thereunder.
Section 1.03 DEFINITIONS. For purposes of this
Indenture, the following terms shall have the following
meanings.
"AUTHENTICATING AGENT" shall mean any agent of the
Trustee which shall be appointed and acting pursuant
to Section 9.15 hereof.
"AUTHORIZED AGENT" shall mean any agent of the
Company designated as such by an Officers'
Certificate delivered to the Trustee.
"BOARD OF DIRECTORS" shall mean the Board of
Directors of the Company or the Executive Committee
of such Board or any other duly authorized committee
of such Board.
"BOARD RESOLUTION" shall mean a copy of a
resolution certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and
effect on the date of such certification, and
delivered to the Trustee.
"BUSINESS DAY" shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday that is not a day on
which banking institutions or trust companies in the
Borough of Manhattan, the City and State of New York,
the state of Missouri, or in the city where the
corporate trust office of the Trustee is located, are
obligated or authorized by law or executive order to
close, except as otherwise specified in a Company
Order pursuant to Section 2.05 hereof.
"COMMISSION" shall mean the United States
Securities and Exchange Commission, or if at any time
hereafter the Commission is not existing or
performing the duties now assigned to it under the
TIA, then the body performing such duties.
"COMPANY" shall mean the corporation named as the
"Company" in the first paragraph of this Indenture,
and its successors and assigns permitted hereunder.
"COMPANY ORDER" shall mean a written order or
certificate signed in the name of the Company by one
of the Chairman, the President, any Vice President,
the Treasurer or an Assistant Treasurer of the
Company, and delivered to the Trustee. At the
Company's option, a Company Order may take the form
of a supplemental indenture to this Indenture.
2
"CORPORATE TRUST OFFICE OF THE TRUSTEE", or other
similar term, shall mean the corporate trust office
of the Trustee, at which at any particular time its
corporate trust business shall be principally
administered, which shall initially be 101 Barclay
Street, Floor 21 West, New York, New York 10286.
"DEBT" shall mean any outstanding funded
obligations of the Company for money borrowed,
whether or not evidenced by notes, debentures, bonds
or other securities, reimbursement obligations under
letters of credit, or guarantees of any such
obligations issued by another Person.
"DEPOSITARY" shall mean, unless otherwise specified
in a Company Order pursuant to Section 2.05 hereof,
The Depository Trust Company, New York, New York
("DTC"), or any successor thereto registered and
qualified as a clearing agency under the Securities
Exchange Act of 1934, or other applicable statute or
regulation.
"EVENT OF DEFAULT" shall mean any event specified
in Section 8.01 hereof, continued for the period of
time, if any, and after the giving of the notice, if
any, therein designated.
"GLOBAL NOTE" shall mean a Note that, pursuant to
Section 2.05 hereof, is delivered to the Depositary
or pursuant to the instructions of the Depositary and
that shall be registered in the name of the Depositary
or its nominee.
"HOLDER", "HOLDER OF NOTES" or "NOTEHOLDER" shall
mean any Person in whose name at the time a
particular Note is registered on the books of the
Trustee kept for that purpose in accordance with the
terms hereof.
"INDENTURE" shall mean this instrument as
originally executed or, if amended or supplemented as
herein provided, as so amended or supplemented, and
shall include the terms and provisions of a
particular series of Notes established pursuant to
Section 2.05 hereof.
"INTEREST PAYMENT DATE", when used with respect to
any Note, shall mean (a) each date designated as such
for the payment of interest on such Note specified in a
Company Order pursuant to Section 2.05 hereof
(provided that the first Interest Payment Date for
such Note, the Original Issue Date of which is after
a Regular Record Date but prior to the respective
Interest Payment Date, shall be the Interest Payment
Date following the next succeeding Regular Record
Date), (b) a date of Maturity of such Note and (c)
only with respect to defaulted interest on such Note,
the date established by the Trustee for the payment
of such defaulted interest pursuant to Section 2.11
hereof.
"MATURITY," when used with respect to any Note,
shall mean the date on which the principal of such
Note becomes due and payable as therein or herein
provided, whether at the Stated Maturity thereof or
by declaration of acceleration, redemption or
otherwise.
"NOTE" or "NOTES" has the meaning stated in the
first recital of this Indenture and more particularly
means any note or notes, as the case may be,
authenticated and delivered under this Indenture,
including any Global Note.
"OFFICERS' CERTIFICATE" when used with respect to
the Company, shall mean a certificate signed by one
of the Chairman, the President, any Vice President,
and by the Treasurer, any Assistant Treasurer, or the
Secretary or an Assistant Secretary of the Company;
provided, that no individual shall be entitled to
sign in more than one capacity.
3
"OPINION OF COUNSEL" shall mean an opinion in
writing signed by legal counsel, who may be an
employee of the Company, meeting the applicable
requirements of Section 16.05 hereof. If the
Indenture requires the delivery of an Opinion of
Counsel to the Trustee, the text and substance of
which has been previously delivered to the Trustee,
the Company may satisfy such requirement by the
delivery by the legal counsel that delivered such
previous Opinion of Counsel of a letter to the
Trustee to the effect that the Trustee may rely on
such previous Opinion of Counsel as if such Opinion
of Counsel was dated and delivered the date delivery
of such Opinion of Counsel is required. Any Opinion
of Counsel may contain reasonable conditions and
qualifications satisfactory to the Trustee.
"ORIGINAL ISSUE DATE" shall mean for a Note, or
portions thereof, the date upon which it, or such
portion, was issued by the Company pursuant to this
Indenture and authenticated by the Trustee (other
than in connection with a transfer, exchange or
substitution).
"OUTSTANDING", when used with reference to Notes,
shall, subject to Section 10.04 hereof, mean, as of
any particular time, all Notes authenticated and
delivered by the Trustee under this Indenture,
except:
(a) Notes theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Notes, or portions thereof, for the payment or
redemption of which moneys in the necessary amount
shall have been deposited in trust with the Trustee
or with any paying agent (other than the Company),
provided that if such Notes are to be redeemed prior
to the Stated Maturity thereof, notice of such
redemption shall have been given as provided in
Article III, or provisions satisfactory to the
Trustee shall have been made for giving such notice;
(c) Notes, or portions thereof, that have been
paid and discharged or are deemed to have been
paid and discharged pursuant to the provisions of
this Indenture; and
(d) Notes in lieu of or in substitution for which
other Notes shall have been authenticated and
delivered, or which have been paid, pursuant to
Section 2.07 hereof.
"PERIODIC OFFERING" means an offering of Notes of a
series from time to time the specific terms of which
Notes, including without limitation the rate or rates
of interest, if any, thereon, the Stated Maturity or
Maturities thereof and the redemption provisions, if
any, with respect thereto, are to be determined by
the Company or its agents upon the issuance of such
Notes.
"PERSON" shall mean any individual, corporation,
company partnership, joint venture, limited liability
company, association, joint-stock company, trust,
unincorporated organization or government or any
agent or political subdivision thereof.
"PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY" shall
mean 1201 Walnut, Kansas City, Missouri 64106, or
such other place where the main corporate offices of
the Company are located as designated in writing to
the Trustee by an Authorized Agent.
"REGULAR RECORD DATE" shall mean, unless otherwise
specified in a Company Order pursuant to Section 2.05
hereof, for an Interest Payment Date for a particular
Note (except for an Interest Payment Date with respect
to defaulted interest on such Note) (a) the fifteenth
4
day next preceding each Interest Payment Date (unless the
Interest Payment Date is the date of Maturity of such
Note, in which event, the Regular Record Date shall
be as described in clause (b) hereof) and (b) the
date of Maturity of such Note.
"RESPONSIBLE OFFICER" or "RESPONSIBLE OFFICERS"
when used with respect to the Trustee shall mean one
or more of the following: any vice president, assistant
vice president or any assistant treasurer, or any other
officer or assistant officer of the Trustee
customarily performing functions similar to those
performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate
trust matter is referred because of his or her
knowledge of and familiarity with the particular
subject.
"SENIOR INDEBTEDNESS" shall mean all obligations
(other than non-recourse obligations, the
indebtedness issued under this Indenture and other
indebtedness which is either effectively by its terms
of expressly made subordinate to or pari passu with
the indebtedness issued under this Indenture) of, or
guaranteed (except to the extent the Company's
payment obligations under any such guarantee are
subordinate to or pari passu with the indebtedness
issued under this Indenture) or assumed by, the
Company for borrowed money, including both senior and
subordinated indebtedness for borrowed money (other
than indebtedness issued under this Indenture and
other indebtedness which is expressly made
subordinate to or pari passu with the indebtedness
issued under this indenture), or for the payment of
money related to any lease which is capitalized on
the balance sheet of the Company in accordance with
generally accepted accounting principles as in effect
from time to time, or evidenced by bonds, debentures,
notes, or other similar instruments, and in each
case, amendments, renewals, extensions,
modifications, and refundings of any such
indebtedness or obligations with Senior Indebtedness,
whether existing as of the
date of this Indenture or subsequently incurred by
the Company.
"SPECIAL RECORD DATE" shall mean, with respect to
any Note, the date established by the Trustee in
connection with the payment of defaulted interest on
such Note pursuant to Section 2.11 hereof.
"STATED MATURITY" shall mean with respect to any
Note, the last date on which principal on such Note
becomes due and payable as therein or herein
provided, other than by declaration of acceleration
or by redemption.
"SUBSIDIARY" shall mean, as to any Person, any
corporation or other entity of which at least a
majority of the securities or other ownership
interest having ordinary voting power (absolutely or
contingently) for the election of directors or other
Persons performing similar functions are at the time
owned directly or indirectly by such Person.
"TRUSTEE" shall mean ______________ and, subject to
Article IX, shall also include any successor Trustee.
"U.S. GOVERNMENT OBLIGATIONS" shall mean (i) direct
noncallable obligations of, or non-callable
obligations guaranteed as to timely payment of
principal and interest by, the United States of
America or obligations of a person controlled or
supervised by and acting as an agency or
instrumentality thereof for the payment of which
obligations or guarantee the full faith and credit of
the United States is pledged or (ii) certificates or
receipts representing direct ownership interests in
obligations or specified portions (such as principal
or interest) of obligations described in clause (i)
above, which obligations are held by a custodian in
safekeeping in a manner satisfactory to the Trustee.
5
ARTICLE II
FORM, ISSUE, EXECUTION, REGISTRATION AND
EXCHANGE OF NOTES
Section 2.01 FORMS GENERALLY.
(a) The Notes shall be in such form as shall be
established by a Company Order pursuant to Section
2.05(c) hereof with such appropriate insertions,
omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have
such letters, numbers or other marks of
identification and such legends or endorsements
placed thereon as may be required to comply with
applicable rules of any securities exchange or of the
Depositary or with applicable law or as may,
consistently herewith, be determined by the officers
executing such Notes, as evidenced by their execution
of such Notes.
(b) The definitive Notes shall be typed,
printed, lithographed or engraved on steel engraved
borders or may be produced in any other manner, all
as determined by the officers executing such Notes,
as evidenced by their execution of such Notes.
Section 2.02 FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION. The Trustee's certificate of
authentication on all Notes shall be in substantially
the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This Note is one of the Notes of the series herein
designated, described or provided for in the within-mentioned
Indenture.
_________________, as Trustee
By:
_________________
Authorized Signatory
Section 2.03 AMOUNT UNLIMITED. The aggregate
principal amount of Notes that may be authenticated
and delivered under this Indenture is unlimited,
subject to compliance with the provisions of this
Indenture.
Section 2.04 DENOMINATIONS, DATES, INTEREST PAYMENT
AND RECORD DATES.
(a) The Notes of each series shall be issuable
in registered form without coupons in denominations
of $1,000 and integral multiples thereof or such
other amount or amounts as may be authorized by the
Board of Directors or a Company Order pursuant to a
Board Resolution or in one or more indentures
supplemental hereto; provided, that the principal
amount of a Global Note shall not exceed $500,000,000
unless otherwise permitted by the Depositary.
(b) Each Note shall be dated and issued as of the
date of its authentication by the Trustee, and shall bear an
Original Issue Date; each Note issued upon transfer,
exchange or substitution of a Note shall bear the
Original Issue Date or Dates of such transferred,
exchanged or substituted Note, subject to the
provisions of Section 2.13(d) hereof.
6
(c) Each Note shall accrue interest from the later of
(1) its Original Issue Date or the date specified in such
Note and (2) the most recent date to which interest
has been paid or duly provided for with respect to
such Note until the principal of such Note is paid or
made available for payment, and interest on each Note
shall be payable on each Interest Payment Date after
the Original Issue Date.
(d) Each Note shall mature on a Stated Maturity
specified in the Note. The principal amount of each
outstanding Note shall be payable on the Stated
Maturity date specified therein.
(e) Unless otherwise specified in a Company
Order pursuant to Section 2.05 hereof, interest on
each of the Notes shall be calculated on the basis of
a 360-day year of twelve 30-day months (and for any
partial periods shall be calculated on the basis of
the number of days elapsed in a 360-day year of
twelve 30-day months) and shall be computed at a
fixed rate until the Stated Maturity of such Notes.
The method of computing interest on any Notes not
bearing a fixed rate of interest shall be set forth
in a Company Order pursuant to Section 2.05 hereof.
Unless otherwise
specified in a Company Order pursuant to Section 2.05
hereof, principal, interest and premium on the Notes
shall be payable in the currency of the United
States.
(f) Except as provided in the following
sentence, the Person in whose name any Note is
registered at the close of business on any Regular
Record Date or Special Record Date with respect to an
Interest Payment Date for such Note shall be entitled
to receive the interest payable on such Interest
Payment Date notwithstanding the cancellation of such
Note upon any registration of transfer, exchange or
substitution of such Note subsequent to such Regular
Record Date or Special Record Date and prior to such
Interest Payment Date. Any interest payable at
Maturity shall be paid to the Person to whom the
principal of such Note is payable.
(g) So long as the Trustee is the registrar and
paying agent, the Trustee shall, as soon as
practicable but no later than the Regular Record Date
preceding each applicable Interest Payment Date,
provide to the Company a list of the principal,
interest and premium to be paid on Notes on such
Interest Payment Date. The Trustee shall assume
responsibility for withholding taxes on interest paid
as required by law except with respect to any Global
Note.
Section 2.05 EXECUTION, AUTHENTICATION, DELIVERY AND
DATING.
(a) The Notes shall be executed on behalf of the
Company by one of its Chairman, President, or any
Vice President and by its Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary
of the Company. The signature of any of these
officers on the Notes may be manual or facsimile.
Typographical and other minor errors or defects in
any such signature shall not affect the validity or
enforceability of any Note that has been duly
authenticated and delivered by the Trustee.
(b) Notes bearing the manual or facsimile
signatures of individuals who were at the time of
execution the proper officers of the Company shall
bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of
such Notes or did not hold such offices at the date
of such Notes.
(c) At any time and from time to time after the
execution and delivery of this Indenture, the Company
may deliver Notes of any series executed by the
Company to the Trustee for authentication, together
with or preceded by one or more Company Orders for the
7
authentication and delivery of such Notes, and
the Trustee in accordance with any such Company Order
shall authenticate and make available for delivery
such Notes; provided, however, that, with respect to
Notes of a series subject to a Periodic Offering, (A)
such Company Order may be delivered by the Company to
the Trustee prior to the delivery to the Trustee of
such Notes for authentication and delivery, (B) the
Trustee shall authenticate and deliver Notes of such
series for original issue from time to time, in an
aggregate principal amount not exceeding the
aggregate principal amount established for such
series, all pursuant to a further Company Order or
pursuant to such procedures acceptable to the Trustee
as may be specified from time to time by such further
Company Order, (C) the Stated Maturity or
Maturities, Original Issue Date or Dates, interest
rate or rates and any other terms of Notes of such
series shall be determined by such further Company
Order or pursuant to such procedures and (D) if
provided for in such procedures, such Company Order
may authorize authentication and delivery pursuant to
oral or electronic instructions from the Company or
its duly authorized agent or agents, which oral
instructions shall be promptly confirmed in writing.
Such Company Order shall specify the following with
respect to each series of Notes: (i) the title of the
Notes of such series (which shall distinguish the
Notes of such series from Notes of all other series)
and any limitations on the aggregate principal amount
of the Notes to be issued as part of such series,
(ii) the Original Issue Date for such series, (iii)
the Stated Maturity of Notes of such series, (iv) the
interest rate or rates, or method of calculation of
such rate or rates, for such series and the date from
which such interest will accrue, (v) the terms, if
any, regarding the optional or mandatory redemption
of such series, including redemption date or dates of
such series, if any, and the price or prices
applicable to such redemption, (vi) whether
or not the Notes of such series shall be issued in
whole or in part in the form of a Global Note and, if
so, the Depositary for such Global Note if not DTC,
(vii) the form of the Notes of such series, (viii)
the maximum annual interest rate, if any, of the
Notes permitted for such series, (ix) the period or
periods within which, the price or prices at which
and the terms and conditions upon which such series
may be repaid, in whole or in part, at the option of
the Holder thereof, (x) the establishment of any
office or agency pursuant to Section 6.02 hereof,
(xi) any Events of Default, in addition to those
specified in Section 8.01 hereof, with respect to the
Notes of such series, and any covenants of the
Company for the benefit of the Holders of the Notes
of such series in addition to those set forth in
Articles VI and XII hereof, (xii) the terms, if any,
pursuant to which the Notes of such series may be
converted into or exchanged for shares of capital
stock or other securities of the Company, and (xiii)
any other terms of such series not inconsistent with
this Indenture. With respect to Notes of a series
subject to a Periodic Offering, such Company Order
may provide general terms or parameters for Notes of
such series and provide either that the specific
terms of particular Notes of such series shall be
specified in a further Company Order or that such
terms shall be determined by the Company or its
agents in accordance with such further Company Order
as contemplated by the proviso of the first sentence
of this Section 2.05(c). Prior to authenticating
Notes of any series, and in accepting the additional
responsibilities under this Indenture in relation to
such Notes, the Trustee shall receive from the
Company the following at or before the issuance of
such series of Notes, and (subject to Section 9.01
hereof) shall be fully protected in relying upon,
unless and until such documents have been superseded
or revoked prior to such issuance:
(1) A Board Resolution authorizing such
Company Order or Orders and, if the form of
Notes is established by a Board Resolution
or a Company Order pursuant to a Board
Resolution, a copy of such Board
Resolution;
(2) At the option of the Company, either an
Opinion of Counsel or a letter addressed to the
Trustee permitting it to rely on an Opinion of
Counsel, stating substantially the following subject
to customary qualifications and exceptions:
8
(A) if the form of such Notes has been
established by or pursuant to a Board Resolution, a
Company Order pursuant to a Board Resolution, or in a
supplemental indenture as permitted by Section 2.01
hereof, that such form has been established in conformity
with this Indenture;
(B) that this Indenture has been duly
authorized, executed and delivered by the Company and
constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its
terms, except as may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance,
moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles
(whether considered in a proceeding at law or in equity)
and by an implied covenant of reasonableness, good faith
and fair dealing;
(C) that this Indenture is qualified
to the extent necessary under the TIA or, if not so
required, that this Indenture is not required to be
qualified under the TIA;
(D) that such Notes have been duly
authorized and executed by the Company, and when
authenticated by the Trustee and issued by the Company in
the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute valid and
binding obligations of the Company, enforceable against
the Company in accordance with their respective
terms, except as may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium and
other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether
considered in a proceeding at law or in equity) and by
an implied covenant of reasonableness, good faith and
fair dealing;
(E) that the issuance of such Notes
will not result in any default under this Indenture;
(F) that all consents or approvals of
the Commission (or any successor agency) under the Public
Utility Holding Company Act of 1935 and of any other
federal or state regulatory agency required in connection
with the Company's execution and delivery of this
Indenture and such Notes have been obtained and are in
full force and effect (except that no statement need be
made with respect to state securities laws); and
(G) that all conditions that must be
met by the Company to issue Notes under this Indenture
have been met.
(3) An Officers' Certificate stating that
(i) the Company is not, and upon the authentication by
the Trustee of such Notes, will not be in default under
any of the terms or covenants contained in this Indenture
and (ii) all conditions that must be met by the Company
to issue Notes under this Indenture have been met.
(d) No Note shall be entitled to any benefit
under this Indenture or be valid or obligatory for
any purpose unless there appears on such Note a
certificate of authentication substantially in the
form provided for herein executed by the Trustee by
the manual signature of an
9
authorized officer, and such certificate upon any Note
shall be conclusive evidence, and the only evidence, that
such Note has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture.
(e) If all Notes of a series are not to be
authenticated and issued at one time in connection
with a Periodic Offering, the Company shall not be
required to deliver the Company Order, Board
Resolution, Officers' Certificate and Opinion of
Counsel (including any of the foregoing that would be
otherwise required pursuant to Section 15.05 hereof)
described in Section 2.05(c) hereof at or prior to
the authentication of each Note of such series, if
such items are delivered at or prior to the time of
authentication of the first Note of such series to be
authenticated and issued.
Section 2.06 EXCHANGE AND REGISTRATION OF TRANSFER OF
NOTES.
(a) Subject to Section 2.13 hereof, Notes of any
series may be exchanged for one or more new Notes of
the same series of any authorized denominations and of
a like aggregate principal amount, series and Stated
Maturity and having the same terms and Original Issue
Date. Notes to be exchanged shall be surrendered at
any of the offices or agencies to be maintained
pursuant to Section 6.02 hereof, and the Trustee
shall authenticate and deliver in exchange therefor
the Note or Notes of such series which the Noteholder
making the exchange shall be entitled to receive.
(b) The Trustee shall keep, at one of said offices or
agencies, a register or registers in which, subject
to such reasonable regulations as it may prescribe,
the Trustee shall register or cause to be registered
Notes and shall register or cause to be registered
the transfer of Notes as in this Article II provided.
Such register shall be in written form or in any
other form capable of being converted into written
form within a reasonable time. At all reasonable
times, such register shall be open for inspection by
the Company. Upon due presentment for registration of
transfer of any Note at any such office or agency,
the Company shall execute and the Trustee shall
register, authenticate and deliver in the name of the
transferee or transferees one or more new Notes of
any authorized denominations and of a like aggregate
principal amount, series and Stated Maturity and
having the same terms and Original Issue Date.
(c) All Notes presented for registration of
transfer or for exchange, redemption or payment shall
be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form
satisfactory to the Company and the Trustee and duly
executed by the Holder or the attorney in fact of
such Holder duly authorized in writing.
(d) No service charge shall be made for any
exchange or registration of transfer of Notes, but
the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that
may be imposed in connection therewith.
(e) The Trustee shall not be required to
exchange or register the transfer of any Notes
selected, called or being called for redemption
(including Notes, if any, redeemable at the option of
the Holder provided such Notes are then redeemable at
such Holder's option) except, in the case of any Note
to be redeemed in part, the portion thereof not to be
so redeemed.
(f) If the principal amount, and applicable
premium, of part, but not all of a Global Note is
paid, then upon surrender to the Trustee of such
Global Note, the Company shall execute, and the
Trustee shall authenticate, deliver and register, a
Global Note in an authorized denomination in
aggregate principal amount equal to, and having the
same terms, Original Issue Date and
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series as, the unpaid portion of such Global Note.
Section 2.07 MUTILATED, DESTROYED, LOST OR STOLEN
NOTES.
(a) If any temporary or definitive Note shall
become mutilated or be destroyed, lost or stolen, the
Company shall execute, and upon its written request
the Trustee shall authenticate and deliver, a new
Note of like form and principal amount and having the
same terms and Original Issue Date and bearing a
number not contemporaneously outstanding, in exchange
and substitution for the mutilated Note, or in lieu
of and in substitution for the Note so destroyed,
lost or stolen. In every case the applicant for a
substituted Note shall furnish to the Company, the
Trustee and any paying agent or Authenticating Agent
such security or indemnity as may be required by them
to save each of them harmless, and, in every case of
destruction, loss or theft of a Note, the applicant
shall also furnish to the Company and to the Trustee
evidence to their satisfaction of the destruction,
loss or theft of such Note and of the ownership
thereof.
(b) The Trustee shall authenticate any such
substituted Note and deliver the same upon the
written request or authorization of any officer of
the Company. Upon the issuance of any substituted
Note, the Company may require the payment of a sum
sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and
any other expenses connected therewith. If any Note
which has matured, is about to mature, has been
redeemed or called for redemption shall become
mutilated or be destroyed, lost or stolen, the
Company may, instead of issuing a substituted Note,
pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated
Note) if the applicant for such payment shall furnish
to the Company, the Trustee and any paying agent or
Authenticating Agent such security or indemnity as
may be required by them to save each of them harmless
and, in case of destruction, loss or theft, evidence
satisfactory to the Company and the Trustee of the
destruction, loss or theft of such Note and of the
ownership thereof.
(c) Every substituted Note issued pursuant to
this Section 2.07 by virtue of the fact that any Note
is mutilated, destroyed, lost or stolen shall
constitute an additional contractual obligation of
the Company, whether or not such destroyed, lost or
stolen Note shall be found at any time, and shall be
entitled to all the benefits of this Indenture
equally and proportionately with any and all other
Notes duly issued hereunder. All Notes shall be held
and owned upon the express condition that, to the
extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Notes and
shall preclude to the full extent permitted by
applicable law any and all other rights or remedies
with respect to the replacement or payment of
negotiable instruments or other securities without
their surrender.
Section 2.08 TEMPORARY NOTES. Pending the
preparation of definitive Notes of any series, the
Company may execute and the Trustee shall
authenticate and deliver temporary Notes (printed,
lithographed or otherwise reproduced). Temporary
Notes shall be issuable in any authorized
denomination and substantially in the form of the
definitive Notes but with such omissions, insertions
and variations as may be appropriate for temporary
Notes, all as may be determined by the Company. Every
such temporary Note shall be authenticated by the
Trustee upon the same conditions and in substantially
the same manner, and with the same effect, as the
definitive Notes. Without unreasonable delay the
Company shall execute and shall deliver to the
Trustee definitive Notes of such series and thereupon
any or all temporary Notes of such series shall be
surrendered in exchange therefor at the corporate
trust office of the Trustee, and the Trustee shall
authenticate, deliver and register in exchange for
such temporary Notes an equal aggregate principal
amount of definitive Notes of such series. Such exchange
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shall be made by the Company at its own
expense and without any charge therefor to the
Noteholders. Until so exchanged, the temporary Notes
of such series shall in all respects be entitled to
the same benefits under this Indenture as definitive
Notes of such series authenticated and delivered
hereunder.
Section 2.09 CANCELLATION OF NOTES PAID, ETC. All
Notes surrendered for the purpose of payment,
redemption, exchange or registration of transfer
shall be surrendered to the Trustee for
cancellation and promptly cancelled by it and no
Notes shall be issued in lieu thereof except as
expressly permitted by this Indenture. The Company
shall surrender to the Trustee any Notes so acquired
by it and such Notes shall be cancelled by the
Trustee. No Notes shall be authenticated in lieu of
or in exchange for any Notes so cancelled.
Section 2.10 INTEREST RIGHTS PRESERVED. Each Note
delivered under this Indenture upon transfer of or in
exchange for or in lieu of any other Note shall carry
all the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Note, and
each such Note shall be so dated that neither gain
nor loss of interest shall result from such transfer,
exchange or substitution.
Section 2.11 SPECIAL RECORD DATE. If and to the
extent that the Company fails to make timely payment
or provision for timely payment of interest on any
series of Notes (other than on an Interest Payment
Date that is a Maturity date), that interest shall
cease to be payable to the Persons who were the
Noteholders of such series at the applicable Regular
Record Date. In that event, when moneys become
available for payment of the interest, the Trustee
shall (a) establish a date of payment of such
interest and a Special Record Date for the payment of
that interest, which Special Record Date shall be not
more than 15 or fewer than 10 days prior to the date
of the proposed payment and (b) mail notice of the
date of payment and of the Special Record Date not
fewer than 10 days preceding the Special Record Date
to each Noteholder of such series at the close of
business on the 15th day preceding the mailing at the
address of such Noteholder, as it appeared on the
register for the Notes. On the day so established by
the Trustee, the interest shall be payable to the
Holders of the applicable Notes at the close of
business on the Special Record Date.
Section 2.12 PAYMENT OF NOTES. Payment of the
principal of and interest and premium on all Notes
shall be payable as follows:
(a) On or before 11:00 a.m., New York City time, or
such other time as shall be agreed upon between the
Trustee and the Company, of the day on which payment
of principal, interest and premium is due on any
Global Note pursuant to the terms thereof, the
Company shall deliver to the Trustee funds available
on such date sufficient to make such payment, by wire
transfer of immediately available funds or by
instructing the Trustee to withdraw sufficient funds
from an account maintained by the Company with the
Trustee or such other method as is acceptable to the
Trustee. On or before 12:00 noon, New York City time,
or such other time as shall be agreed upon between
the Trustee and the Depositary, of the day on which
any payment of interest is due on any Global Note
(other than at Maturity), the Trustee shall pay to
the Depositary such interest in same day funds. On or
before 1:00 p.m., New York City time or such other
time as shall be agreed upon between the Trustee and
the Depositary, of the day on which principal,
interest payable at Maturity and premium, if any, is
due on any Global Note, the Trustee shall deposit
with the Depositary the amount equal to the
principal, interest payable at Maturity and premium,
if any, by wire transfer into the account specified
by the Depositary. As a condition to the payment, at
Maturity, of any part of the principal of, interest
on, and applicable premium of any Global Note, the
Depositary shall surrender, or cause to be surrendered,
such
12
Global Note to the Trustee, whereupon a new Global
Note shall be issued to the Depositary pursuant to
Section 2.06(f) hereof.
(b) With respect to any Note that is not a Global
Note, principal, applicable premium and interest due at the
Maturity of the Note shall be payable in immediately
available funds when due upon presentation and
surrender of such Note at the corporate trust office
of the Trustee or at the authorized office of any
paying agent in the Borough of Manhattan, The City
and State of New York. Interest on any Note that is
not a Global Note (other than interest payable at
Maturity) shall be paid by check payable in
clearinghouse funds mailed to the Holder thereof at
such Holder's address as it appears on the register;
provided that if the Trustee receives a written
request from any Holder of Notes, the aggregate
principal amount of which having the same Interest
Payment Date equals or exceeds $10,000,000, on or
before the applicable Regular Record Date for such
Interest Payment Date, interest on such Note shall be
paid by wire transfer of immediately available funds
to a bank within the continental United States
designated by such Holder in its request or by direct
deposit into the account of such Holder designated by
such Holder in its request if such account is
maintained with the Trustee or any paying agent.
Section 2.13 NOTES ISSUABLE IN THE FORM OF A GLOBAL
NOTE.
(a) If the Company shall establish pursuant to
Section 2.05 hereof that the Notes of a particular
series are to be issued in the form of one or more
Global Notes, then the Company shall execute and the
Trustee shall, in accordance with Section 2.05 hereof
and the Company Order delivered to the Trustee
thereunder, authenticate and deliver such Global Note
or Notes, which, unless otherwise specified in such
Company Order, (i) shall represent, shall be
denominated in an amount equal to the aggregate
principal amount of, and shall have the same terms
as, the outstanding Notes of such series to be
represented by such Global Note or Notes, (ii) shall
be registered in the name of the Depositary or its
nominee, (iii) shall be delivered by the Trustee to
the Depositary or pursuant to the Depositary's
instruction and (iv) shall bear a legend
substantially to the following effect: "This Note is
a Global Note registered in the name of the
Depositary (referred to herein) or a nominee thereof
and, unless and until it is exchanged in whole for
the individual Notes represented hereby as provided
in the Indenture referred to below, this Global Note
may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the
Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary.
Unless this Global Note is presented by an authorized
representative of The Depository Trust Company (55
Water Street, New York, New York), to the Trustee for
registration of transfer, exchange or payment, and
any certificate issued is registered in the name of
Cede & Co. or such other name as requested by an
authorized representative of The Depository Trust
Company and any payment is made to Cede & Co., any
transfer, pledge or other use hereof for value or
otherwise by or to any person is wrongful since the
registered owner hereof, Cede & Co., has an interest
herein" or such other legend as may be required by
the rules and regulations of the Depositary.
(b) (i) If at any time the Depositary for a
Global Note notifies the Company that it is unwilling
or unable to continue as Depositary for such Global
Note or if at any time the Depositary for the Global
Note shall no longer be eligible or in good standing
under the Securities Exchange Act of 1934 or other
applicable statute or regulation, the Company shall
appoint a successor Depositary with respect to such
Global Note. If a successor Depositary for such
Global Note is not appointed by the Company within 90
days after the Company
13
receives such notice or becomes aware of such ineligibility,
the Company's election pursuant to Section 2.05(c)(vi) hereof
shall no longer be effective with respect to the series of
Notes evidenced by such Global Note and the Company
shall execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of
individual Notes of such series in exchange for such
Global Note, shall authenticate and deliver,
individual Notes of such series of like tenor and
terms in definitive form in an aggregate principal
amount equal to the principal amount of such Global
Note in exchange for such Global Note. The Trustee
shall not be charged with knowledge or notice of the
ineligibility of a Depositary unless a Responsible
Officer shall have actual knowledge thereof.
(ii) (A) The Company may at any time
and in its sole discretion determine that
all outstanding (but not less than all)
Notes of a series issued or issuable in
the form of one or more Global Notes
shall no longer be represented by such
Global Note or Notes. In such event the
Company shall execute, and the Trustee,
upon receipt of a Company Order for the
authentication and delivery of individual
Notes in exchange for such Global Note, shall
authenticate and deliver individual Notes
of like tenor and terms in definitive
form in an aggregate principal amount
equal to the principal amount of such
Global Note or Notes in exchange for such
Global Note or Notes.
(B) Within seven days after the
occurrence of an Event of Default with
respect to any series of Global Notes,
the Company shall execute, and the
Trustee shall authenticate and deliver,
Notes of such series in definitive
registered form in any authorized
denominations and in aggregate principal
amount equal to the principal amount of
such Global Notes in exchange for such
Global Notes.
(iii) In any exchange provided for in any of the
preceding two paragraphs, the Company will
execute and the Trustee will authenticate
and deliver individual Notes in definitive
registered form in authorized
denominations. Upon the exchange of a
Global Note for individual Notes, such
Global Note shall be cancelled by the
Trustee. Notes issued in exchange for a
Global Note pursuant to this Section shall
be registered in such names and in such
authorized denominations as the Depositary
for such Global Note, pursuant to
instructions from its direct or indirect
participants or otherwise, shall instruct
the Trustee. The Trustee shall deliver such
Notes to the Depositary for delivery to the
persons in whose names such Notes are so
registered, or if the Depositary shall refuse or
be unable to deliver such Notes, the Trustee
shall deliver such Notes to the persons in
whose names such Notes are registered, unless
otherwise agreed upon between the Trustee and
the Company, in which event the Company shall
cause the Notes to be delivered to the persons
in whose names such Notes are registered.
(c) Neither the Company, the Trustee, any
Authenticating Agent nor any paying agent shall have any
responsibility or liability for any aspect of the
records relating to, or payments made on account of,
beneficial ownership interests of a Global Note or
for maintaining, supervising or reviewing any records
relating to such beneficial ownership interest.
(d) Pursuant to the provisions of this subsection, at
the option of the Trustee (subject to Section 2.04(a)
hereof) and upon 30 days' written notice to the
Depositary but not prior to the
14
first Interest Payment Date of the respective Global Notes,
the Depositary shall be required to surrender any two or
more Global Notes which have identical terms,
including, without limitation, identical maturities,
interest rates and redemption provisions (but which may
have differing Original Issue Dates) to the Trustee, and
the Company shall execute and the Trustee shall authenticate
and deliver to, or at the direction of, the Depositary a
Global Note in principal amount equal to the
aggregate principal amount of, and with all terms
identical to, the Global Notes surrendered thereto
and that shall indicate each applicable Original
Issue Date and the principal amount applicable to
each such Original Issue Date. The exchange
contemplated in this subsection shall be consummated
at least 30 days prior to any Interest Payment Date
applicable to any of the Global Notes surrendered to
the Trustee. Upon any exchange of any Global Note
with two or more Original Issue Dates, whether
pursuant to this Section or pursuant to Section 2.06
or Section 3.03 hereof, the aggregate principal
amount of the Notes with a particular Original Issue
Date shall be the same before and after such
exchange, after giving effect to any retirement of
Notes and the Original Issue Dates applicable to such
Notes occurring in connection with such exchange.
Section 2.14 CUSIP AND ISIN NUMBERS. The Company in
issuing Notes may use "CUSIP" or "ISIN" numbers (if
then generally in use) and, if so used, the Trustee
shall use "CUSIP" or "ISIN" numbers in notices of
redemption as a convenience to holders of Notes;
provided, that any such notice may state that no
representation is made as to the correctness of such
numbers either as printed on the Notes or contained
in any notice of redemption and that reliance may be
placed only on the other identification numbers
printed on the Notes, and any such redemption shall
not be affected by any defect in or omission of such
numbers. The Company shall promptly notify the
Trustee of any change in the "CUSIP" or "ISIN"
numbers.
Section 2.15 EXTENSION OF INTEREST PAYMENT PERIODS.
The Company shall have the right at any time, so long
as the Company is not in default in the payment of
interest on the Notes of any series hereunder, to
extend interest payment periods on all Notes of one
or more series, if so specified as contemplated by
Section 2.05 with respect to such Notes and upon such
terms as may be specified as contemplated by Section
2.05 with respect to such Notes.
ARTICLE III
REDEMPTION OF NOTES
Section 3.01 APPLICABILITY OF ARTICLE. Those Notes
of any series that are, by their terms, redeemable
prior to their Stated Maturity at the option of the
Company, may be redeemed by the Company at such
times, in such amounts and at such prices as may be
specified therein and in accordance with the
provisions of this Article III.
Section 3.02 NOTICE OF REDEMPTION; SELECTION OF
NOTES.
(a) The election of the Company to redeem any
Notes shall be evidenced by a Board Resolution which
shall be given with notice of redemption to the
Trustee at least 45 days (or such shorter
period acceptable to the Trustee in its sole
discretion) prior to the redemption date specified in
such notice.
(b) Notice of redemption to each Holder of Notes
to be redeemed as a whole or in part shall be given
by the Trustee, in the manner provided in Section
15.10 hereof, no less than 30 or more than 60 days
prior to the date fixed for redemption. Any notice
which is given in the
15
manner herein provided shall be conclusively presumed to
have been duly given, whether or not the Noteholder
receives the notice. In any case, failure duly to give
such notice,or any defect in such notice, to the Holder
of any Note designated for redemption as a whole or in
part shall not affect the validity of the proceedings for the
redemption of any other Note.
(c) Each such notice shall identify the Notes to
be redeemed (including "CUSIP" or "ISIN" numbers) and
shall specify the date fixed for redemption, the
places of redemption and the redemption price (or the
method for calculation thereof) at which such Notes
are to be redeemed, and shall state that (subject to
subsection (e) of this section) payment of the
redemption price of such Notes or portion thereof to
be redeemed will be made upon surrender of such Notes
at such places of redemption, that interest accrued
to the date fixed for redemption will be paid as
specified in such notice, and that from and after
such date interest thereon shall cease to accrue. If
less than all of a series of Notes having the same
terms are to be redeemed, the notice shall specify
the Notes or portions thereof to be redeemed. If any
Note is to be redeemed in part only, the notice which
relates to such Note shall state the portion of the
principal amount thereof to be redeemed, and shall
state that, upon surrender of such Note, a new Note
or Notes having the same terms in aggregate principal
amount equal to the unredeemed portion thereof will
be issued.
(d) Unless otherwise provided by a Company Order
under Section 2.05 hereof, if less than all of a
series of Notes is to be redeemed, the Trustee shall
select in such manner as it shall deem appropriate
and fair in its discretion the particular Notes to be
redeemed in whole or in part and shall hereafter
promptly notify the Company in writing of the Notes
so to be redeemed. If less than all of a series of
Notes represented by a Global Note is to be redeemed,
the particular Notes or portions thereof of such
series to be redeemed shall be selected by the
Depositary for such series of Notes in such manner as
the Depositary shall determine. Notes shall be
redeemed only in denominations of $1,000, or such
other denominations authorized by a Company Order
pursuant to Section 2.05 hereof, provided that any
remaining principal amount of a Note redeemed in part
shall be a denomination authorized under this
Indenture.
(e) If at the time of the mailing of any notice
of redemption at the option of the Company, the
Company shall not have irrevocably directed the
Trustee to apply funds then on deposit with the
Trustee or held by it and available to be used for
the redemption of Notes to redeem all the Notes
called for redemption, such notice, at the election
of the Company, may state that it is conditional and
subject to the receipt of the redemption moneys by
the Trustee on or before the date fixed for
redemption and that such notice shall be of no force
and effect unless such moneys are so received on or
before such date.
Section 3.03 PAYMENT OF NOTES ON REDEMPTION;
DEPOSIT OF REDEMPTION PRICE.
(a) If notice of redemption for any Notes shall have
been given as provided in Section 3.02 hereof and such
notice shall not contain the language permitted at
the Company's option under Section 3.02(e) hereof,
such Notes or portions of Notes called for redemption
shall become due and payable on the date and at the
places stated in such notice at the applicable
redemption price, together with interest accrued to
the date fixed for redemption of such Notes. Interest
on the Notes or portions thereof so called for
redemption shall cease to accrue and such Notes or
portions thereof shall be deemed not to be entitled
to any benefit under this Indenture except to receive
payment of the redemption price together with
interest accrued thereon to the date fixed for
redemption. Upon presentation and surrender of such
Notes at the place of payment specified in such notice,
such Notes or the specified portions thereof shall be
16
paid and redeemed at the applicable
redemption price, together with interest accrued
thereon to the date fixed for redemption.
(b) If notice of redemption shall have been
given as provided in Section 3.02 hereof and such
notice shall contain the language permitted at the
Company's option under Section 3.02(e) hereof, such
Notes or portions of Notes called for redemption
shall become due and payable on the date and at the
places stated in such notice at the applicable
redemption price, together with interest accrued to
the date fixed for redemption of such Notes, and
interest on the Notes or portions thereof so called
for redemption shall cease to accrue and such Notes
or portions thereof shall be deemed not to be
entitled to any benefit under this Indenture except
to receive payment of the redemption price together
with interest accrued thereon to the date fixed for
redemption; provided that, in each case, the Company
shall have deposited with the Trustee or a paying
agent on or prior to 11:00 a.m. New York City time on
such redemption date an amount sufficient to pay the
redemption price together with interest accrued to
the date fixed for redemption. Upon the Company
making such deposit and, upon presentation and
surrender of such Notes at such a place of payment in
such notice specified, such Notes or the specified
portions thereof shall be paid and redeemed at the
applicable redemption price, together with interest
accrued thereon to the date fixed for redemption. If
the Company shall not make such deposit on or prior
to the redemption date, the notice of redemption
shall be of no force and effect and the principal on
such Notes or specified portions thereof shall
continue to bear interest as if the notice of
redemption had not been given.
(c) No notice of redemption of Notes shall be
mailed during the continuance of any Event of
Default, except (1) that, when notice of redemption
of any Notes has been mailed, the Company shall
redeem such Notes but only if funds sufficient for
that purpose have prior to the occurrence of such
Event of Default been deposited with the Trustee or a
paying agent for such purpose, and (2) that notices
of redemption of all outstanding Notes may be given
during the continuance of an Event of Default.
(d) Upon surrender of any Note redeemed in part only,
the Company shall execute, and the Trustee shall
authenticate, deliver and register, a new Note or
Notes of authorized denominations in aggregate
principal amount equal to, and having the same terms,
Original Issue Date or Dates and series as, the
unredeemed portion of the Note so surrendered.
ARTICLE IV
SINKING FUNDS
Section 4.01 APPLICABILITY OF ARTICLE. The provisions
of this Article shall be applicable to any sinking fund for
the retirement of the Notes of any series, except as
otherwise specified as contemplated by Section
2.05(c) hereof for Notes of such series.
The minimum amount of any sinking fund payment
provided for by the terms of Notes of any series is
herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum
amount provided for by the terms of Notes of any series
is herein referred to as an "optional sinking fund
payment". If provided for by the terms of Notes of
any series, the cash amount of any sinking fund
payment may be subject to reduction as provided in
Section 4.02 hereof. Each sinking fund payment shall be
applied to the redemption of Notes of the series in respect of
which it was made as provided for by the terms of
such Notes.
17
Section 4.02 SATISFACTION OF SINKING FUND PAYMENTS
WITH NOTES. The Company (a) may deliver Outstanding
Notes (other than any previously called for
redemption) of a series in respect of which a
mandatory sinking fund payment is to be made and (b)
may apply as a credit Notes of such series which have been
redeemed either at the election of the Company
pursuant to the terms of such Notes or through the
application of permitted optional sinking fund
payments pursuant to the terms of such Notes, in each
case in satisfaction of all or any part of such
mandatory sinking fund payment; provided, however,
that no Notes shall be applied in satisfaction of a
mandatory sinking fund payment if such Notes shall
have been previously so applied. Notes so applied
shall be received and credited for such purpose by
the Trustee at the redemption price specified in such
Notes for redemption through operation of the sinking
fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.
Section 4.03 REDEMPTION OF NOTES FOR SINKING FUND.
Not less than 45 days prior to each sinking fund
payment date for the Notes of any series, the Company
shall deliver to the Trustee an Officers' Certificate
specifying:
(a) the amount of the next succeeding mandatory
sinking fund payment for such series;
(b) the amount, if any, of the optional sinking
fund payment to be made together with such mandatory
sinking fund payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate
sinking fund payment which is to be satisfied by
the payment of cash; and
(e) the portion, if any, of such aggregate
sinking fund payment which is to be satisfied by
delivering and crediting Notes of such series
pursuant to Section 4.02 hereof and stating the
basis for such credit and that such Notes have
not previously been so credited.
The Company shall also deliver to the Trustee any
Notes to be so delivered. If the Company shall not
deliver such Officers' Certificate, the next
succeeding sinking fund payment for such series shall
be made entirely in cash in the amount of the
mandatory sinking fund payment. Not less than 30 days
before each such sinking fund payment date the
Trustee shall select the Notes to be redeemed upon
such sinking fund payment date in the manner
specified in Section 3.02(d) hereof and cause notice
of the redemption thereof to be given in the name of
and at the expense of the Company in the manner
provided in Section 3.02 hereof. Such notice having
been duly given, the redemption of such Notes shall
be made upon the terms and in the manner stated in
Section 3.03 hereof.
ARTICLE V
SATISFACTION AND DISCHARGE; UNCLAIMED MONEYS
Section 5.01 SATISFACTION AND DISCHARGE OF
INDENTURE. This Indenture shall upon the request of
the Company cease to be of further effect with
respect to the Notes of any series (except as to any
surviving rights of registration of transfer or
exchange of Notes of such series herein expressly
provided for), and the Trustee, at the expense of the
Company, shall execute proper instruments
acknowledging satisfaction and discharge of this
Indenture, when:
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(a) either:
(i) all Notes of such series previously
authenticated and delivered (other than
Notes of such series which have been
destroyed, lost or stolen and which have
been replaced or paid) have been delivered
to the Trustee for cancellation; or
(ii) all the Notes of such series not
previously delivered to the Trustee for
cancellation have become due and payable
(whether at stated maturity, early
redemption or otherwise), and the Company
has deposited, or caused to be deposited,
irrevocably with the Trustee as funds in
trust solely for the benefit of the Holders
of the Notes of such series an amount in
cash sufficient to pay principal of,
premium, if any, and interest on all
outstanding Notes of such series;
(b) the Company has paid or caused to be paid
all other sums payable hereunder by the Company
with respect to the Notes of such series; and
(c) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel,
each stating that all conditions precedent
herein provided for relating to the satisfaction
and discharge of this Indenture with respect to
the Notes of such series have been complied
with.
Notwithstanding the satisfaction and discharge of
this Indenture with respect to the Notes of any or
all series, the obligations of the Company to the
Trustee under Section 9.06 hereof shall survive, and,
if money will have been deposited with the Trustee
pursuant to subclause (ii) of clause (a) of this
Section 5.01, the obligations of the Trustee under
Sections 5.02 and 5.05 hereof shall survive.
Section 5.02 APPLICATION OF TRUST FUNDS;
INDEMNIFICATION.
(a) Subject to the provisions of Section 5.05
hereof, all money and U.S. Government Obligations
deposited with the Trustee pursuant to Section 5.01,
5.03 or 5.04 hereof and all money received by the
Trustee in respect of U.S. Government Obligations
deposited with the Trustee pursuant to Sections
5.01,5.03 or 5.04 hereof, shall be held in trust and
applied by it, in accordance with the provisions of
the Notes of any particular series and this
Indenture, to the payment, either directly or through
any paying agent as the Trustee may determine, to the
persons entitled thereto, of the principal, premium, if any,
and interest for whose payment such money has been
deposited with or received by the Trustee.
(b) The Company shall pay and shall indemnify the
Trustee against any tax, fee or other charge imposed on or
assessed against U.S. Government Obligations deposited
pursuant to Sections 5.01, 5.03 or 5.04 hereof or the
interest, premium, if any, and principal received in
respect of such obligations other than any payable by
or on behalf of Holders.
(c) The Trustee shall deliver or pay to the
Company from time to time upon the request of the
Company any U.S. Government Obligations or money held
by it as provided in Sections 5.01, 5.03 or 5.04
hereof which, in the opinion of a nationally
recognized firm of independent certified public
accountants expressed in a written certification
thereof delivered to the Trustee, are then in excess
of the amount thereof which then would have been
required to be deposited for the purpose for which
such U.S. Government Obligations or money were
19
deposited or received. This provision shall not
authorize the sale by the Trustee of any U.S.
Government Obligations held under this Indenture.
Section 5.03 LEGAL DEFEASANCE. The Company shall be
deemed to have been discharged from its obligations
with respect to all of the outstanding Notes of any
series on the day after the date of the deposit
referred to in subparagraph (i) hereof, and the
provisions of this Indenture, as it relates to the
outstanding Notes of such series, shall no longer be
in effect (and the Trustee, at the expense of the
Company, shall, upon the request of the Company,
execute proper instruments acknowledging the same),
except as to:
(a) the rights of Holders of the Notes of such series
to receive, solely from the trust funds described
in subparagraph (i) below, payments of the principal
of, premium, if any, or interest on the outstanding
Notes of such series on the date such payments are due;
(b) the Company's obligations with respect to the
Notes of such series under Sections 2.06, 2.07, 2.13,
6.02 and 6.04 hereof; and
(c) the rights, powers, trust and immunities of the
Trustee hereunder and the duties of the Trustee under
Section 5.02 hereof and the duty of the Trustee to
authenticate Notes of such series issued on registration
of transfer of exchange; provided that the following
conditions shall have been satisfied:
(i) the Company shall have deposited, or
caused to be deposited, irrevocably with
the Trustee as funds in trust for the
purpose of making the following payments,
specifically pledged as security for and
dedicated solely to the benefit of the
Holders of the Notes of such series, cash
in U.S. dollars and/or U.S. Government
Obligations which through the payment of
interest and principal in respect thereof,
in accordance with their terms, will
provide (without reinvestment), not later
than one day before the due date of any
payment of money, an amount in cash,
sufficient, in the opinion of a nationally
recognized firm of independent public
accountants expressed in a written
certification thereof delivered to the
Trustee, to pay principal of, premium, if
any, and interest on all the Notes of such
series on the dates such payments of
principal, premium, if any, or interest
are due to maturity or redemption;
(ii) no Event of Default or event which
with the giving of notice or lapse of time
or both would become an Event of Default
with respect to the Notes of such series
shall have occurred and be continuing on
the date of such deposit and 91 days shall
have passed after the deposit has been
made, and, during such 91 day period, no
Default with respect to the Notes of such
series specified in Section 8.01(a)(5) or
(6) hereof with respect to the Company
occurs which is continuing at the end of
such period;
(iii) the Company shall have delivered to
the Trustee an Officers' Certificate and an
Opinion of Counsel to the effect that (A)
the Company has received from, or there has
been published by, the Internal Revenue
Service a ruling, or (B) since the date of
execution of this Indenture, there has been
a change in the applicable federal income
tax law, in either case to the effect that,
and based thereon such Opinion of Counsel
shall confirm that, the Holders of the
Notes of such series will not recognize
income, gain or loss for federal income tax
purposes as a result of such deposit,
defeasance and discharge and will be
subject to federal income tax
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in the same amounts, in the same manner and at
the same times as would have been the case if such
deposit, defeasance and discharge had not
occurred;
(iv) the Company shall have delivered to
the Trustee an Officers' Certificate
stating that the deposit was not made by
the Company with the intent of preferring
the Holders of the Notes of such series
over any other creditors of the Company or
with the intent of defeating, hindering,
delaying or defrauding any other creditors
of the Company;
(v) such deposit shall not cause the
Trustee to have a conflicting interest
within the meaning of the TIA with respect
to any securities of the Company or result
in the trust arising from such deposit
constituting an "investment company" (as
defined in the Investment Company Act of
1940, as amended); and
(vi) the Company shall have delivered to
the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that all
conditions precedent relating to the
defeasance contemplated by this Section
5.03 have been complied with.
Subject to compliance with this Article V, the
Company may exercise its option under this Section
5.03 notwithstanding the prior exercise of its option
under Section 5.04 with respect to the Notes of any
series. Following a defeasance, payment of the Notes
of such series may not be accelerated because of an
Event of Default.
Section 5.04 COVENANT DEFEASANCE. On and after the
day after the date of the deposit referred to in
subparagraph (a) hereof, the Company may omit to
comply with any term, provision or condition set
forth under Section 6.05 and Article XII hereof as
well as any additional covenants contained in a
supplemental indenture hereto (and the failure to
comply with any such provisions shall not constitute
a Default or Event of Default under Section 8.01
hereof) and the occurrence of any event described
in clause (3) and (4) of Section 8.01(a) hereof
shall not constitute a Default or Event of Default
hereunder, with respect to the Notes of any series,
provided that the following conditions shall have
been satisfied:
(a) with reference to this Section 5.04, the
Company has deposited, or caused to be deposited,
irrevocably (except as provided in Section 5.05
hereof) with the Trustee as funds in trust, specifically
pledged as security for, and dedicated solely to, the
benefit of the Holders of the Notes of such series,
cash in U.S. dollars and/or U.S. Government Obligations
which through the payment of principal and interest in
respect thereof, in accordance with their terms, will
provide (without reinvestment), not later than one day
before the due date of any payment of money, an amount in
cash, sufficient, in the opinion of a nationally
recognized firm of independent certified public
accountants expressed in a written certification
thereof delivered to the Trustee, to pay principal,
premium, if any, and interest on all the Notes of
such series on the dates such payments of principal,
premium, if any, and interest are due to maturity or
redemption;
(b) no Event of Default or event which with the
giving of notice or lapse of time or both would become
an Event of Default with respect to the Notes of such
series shall have occurred and be continuing on the
date of such deposit and 91 days shall have passed
after the deposit has been made, and, during such 91
day period, no Default with respect to the Notes of
such series specified in Section 8.01(a)(5) or (6) hereof
with respect to the Company occurs which is continuing
at the end of such period;
21
(c) the Company shall have delivered to the Trustee
an Opinion of Counsel confirming that Holders of the
Notes of such series will not recognize income, gain
or loss for federal income tax purposes as a result
of such deposit and defeasance and will be subject
to federal income tax in the same amounts, in the same
manner and at the same times as would have been the
case if such deposit and defeasance had not occurred;
(d) the Company shall have delivered to the Trustee
an Officers' Certificate stating the deposit was not
made by the Company with the intent of preferring the
Holders of the Notes of such series over any other
creditors of the Company or with the intent of
defeating, hindering, delaying or defrauding any other
creditors of the Company;
(e) such deposit shall not cause the Trustee to
have a conflicting interest within the meaning of the
TIA with respect to any securities of the Company or
result in the trust arising from such deposit
constituting an "investment company" (as defined in
the Investment Company Act of 1940, as amended);
(f) the Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel,
each stating that all conditions precedent herein
provided for relating to the defeasance contemplated
by this Section 5.04 have been complied with; and
(g) following a covenant defeasance, payment of the
Notes of any series may not be accelerated because of
an Event of Default specified in Sections 8.01(a)(5)
and (6) or by reference to Sections 6.05 and 8.01(a)(3)
and (4) and Article XII hereof.
Section 5.05 REPAYMENT TO COMPANY. The Trustee and
the paying agent shall pay to the Company upon
request any money held by them for the payment of
principal, premium, if any, or interest that remains
unclaimed for two years after the date upon which
such payment shall have become due. After payment to
the Company, Holders of the Notes of such series
entitled to the money must look to the Company for
payment as general creditors unless an applicable
abandoned property law designates another Person.
ARTICLE VI
PARTICULAR COVENANTS OF THE COMPANY
Section 6.01 PAYMENT OF PRINCIPAL AND INTEREST. The
Company covenants and agrees for the benefit of the
Holders of the Notes of any series that it will duly
and punctually pay or cause to be paid the principal
of and any premium and interest, if any, on, such
Notes at the places, at the respective times and in
the manner provided in such Notes or in this
Indenture.
Section 6.02 OFFICES FOR PAYMENTS, ETC. So long as
the Notes of any series are outstanding hereunder,
the Company will maintain an office or agency where
the Notes of such series may be presented for
payment, for exchange as in this Indenture provided,
for registration of transfer as in this Indenture
provided, and where notices and demands to or upon
the Company in respect of the securities under this
Indenture may be served. The Principal Executive
Offices of the Company will be such office or agency
unless the Company shall maintain some other office
or agency for such purposes and shall give the Trustee
and the registered holders of the securities written notice
of the location thereof. If the Company shall fail
to give such notice of the location or of any change
in the location of any of the above offices
22
or agencies, presentations and demands may be made and
notices may be served at the Corporate Trust Office
of the Trustee, and, in such event, the Trustee shall
act as the Company's agent to receive all such
presentations, surrenders, notices and demands.
The Company may from time to time designate one or
more additional offices or agencies where the Notes
of any series may be presented for payment, for
exchange as in this Indenture provided and for
registration of transfer as in this Indenture
provided, and the Company may from time to time
rescind any such designation; provided, however, that
no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain any
office or agency provided for in this Section. The
Company will give to the Trustee prompt written
notice of any such designation or rescission thereof
and of any change in the location of any such other
office or agency.
Section 6.03 APPOINTMENT TO FILL A VACANCY IN
OFFICE OF TRUSTEE. The Company, whenever necessary to
avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 9.11,
a Trustee, so that there shall at all times be a
Trustee hereunder.
Section 6.04 PROVISION AS TO PAYING AGENT. The
Trustee shall be the paying agent for the Notes and,
at the option of the Company, the Company may appoint
additional paying agents (including without
limitation itself or its Subsidiary unless an Event
of Default has occurred and is continuing). Whenever
the Company shall appoint a paying agent other than the
Trustee with respect to the Notes, it will cause such
paying agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section:
(1) that such paying agent will hold all sums
received by it as such agent for the payment of the
principal of or interest, if any, on the Notes
(whether such sums have been paid to it by the
Company or by any other obligor on the Notes) in
trust for the benefit of the Holders of the Notes, or
of the Trustee until such sums shall be paid to such
Holders or otherwise disposed of as herein provided;
(2) that such paying agent will give the Trustee
notice of any failure by the Company (or by any other
obligor on Notes) to make any payment of the
principal of, premium if any, or interest on the
Notes when the same shall be due and payable; and
(3) that such paying agent will at any time
during the continuance of any such failure, upon the
written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such paying
agent.
The Company will, on or prior to each due date of the
principal of and any premium, if any, or interest on
the Notes, deposit with the paying agent a sum
sufficient to pay such principal and any premium
or interest so becoming due, such sum to be held
in trust for the benefit of the Holders of the Notes
entitled to such principal of and any premium or
interest, and (unless such paying agent is the Trustee)
the Company will promptly notify the Trustee of any
failure to take such action.
If the Company or its Subsidiary shall act as its
own paying agent with respect to the Notes, it will,
on or before each due date of the principal of (and
premium, if any) or interest, if any, on the Notes,
set aside, segregate and hold in trust for the
benefit of the Holders of the Notes, a sum sufficient
to pay such principal (and premium, if any) or
interest, if any, so becoming due
23
until such sums shall be paid to such Holders or otherwise
disposed of as herein provided. The Company will promptly
notify the Trustee of any failure to take such
action.
The Company may at any time pay or cause to be paid
to the Trustee all sums held in trust by it or any paying
agent hereunder, as required by this Section, such
sums to be held by the Trustee upon the trusts herein
contained, and, upon such payment by any paying agent
to the Trustee, such paying agent shall be released
from all further liability with respect to such
money.
Anything in this Section to the contrary
notwithstanding, the agreement to hold sums in trust
as provided in this Section is subject to the
provisions of Sections 5.03 and 5.04.
Section 6.05 CORPORATE EXISTENCE. Subject to the
rights of the Company under Article XII, the Company
shall do or cause to be done all things necessary to
preserve and keep in full force and effect its
corporate existence and the rights (charter and
statutory) and franchises of the Company; provided,
however, that the Company shall not be required to
preserve any such right or franchise if, in the
judgment of the Company, the preservation thereof is
no longer desirable in the conduct of the business of
the Company.
Section 6.06 CERTIFICATES AND NOTICE TO TRUSTEE. The
Company shall, on or before __________ of each year,
commencing _______________, deliver to the Trustee a
certificate from its principal executive officer,
principal financial officer or principal accounting
officer covering the preceding calendar year and
stating whether or not, to the knowledge of such
Person, the Company has complied with all conditions
and covenants under this Indenture, and, if not,
describing in reasonable detail any failure by the
Company to comply with any such conditions or
covenants. For purposes of this Section, compliance
shall be determined without regard to any period of
grace or requirement of notice provided under this
Indenture.
ARTICLE VII
NOTEHOLDER LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE
Section 7.01 COMPANY TO FURNISH NOTEHOLDER LISTS.
The Company and any other obligor on the Notes shall
furnish or cause to be furnished to the Trustee a
list in such form as the Trustee may reasonably
require of the names and addresses of the Holders of
the Notes:
(a) semi-annually and not more than 15 days
after each Regular Record Date for each Interest
Payment Date that is not a Maturity date, as of such
Regular Record Date, and such list need not include
information received after such date; and
(b) at such other times as the Trustee may
request in writing, within 30 days after receipt by
the Company of any such request, as of a date not
more than 15 days prior to the time such information
is furnished, and such list need not include
information received after such date; provided that
if and so long as the Trustee shall be the registrar
for the Notes, such list shall not be required to be
furnished.
Section 7.02 PRESERVATION AND DISCLOSURE OF
NOTEHOLDER LISTS.
(a) The Trustee shall preserve, in as current a
form as is reasonably practicable, all information as
to the names and addresses of the Holders of the
Notes (i) contained in the most
24
recent lists furnished to it as provided in Section 7.01,
(ii) received by it in the capacity of registrar for the
Notes, if so acting, and (iii) filed with it within
the two preceding years pursuant to Section
7.04(d)(2). The Trustee may destroy any list
furnished to it as provided in Section 7.01 upon
receipt of a new list so furnished.
(b) In case three or more Holders of Notes
(hereinafter referred to as "applicants") apply in
writing to the Trustee and furnish to the Trustee
reasonable proof (in the discretion of the Trustee)
that each such applicant has owned a Note for a
period of at least six months preceding the date
of such application, and such application
states that the applicants desire to communicate with
other Holders of Notes with respect to their rights
under this Indenture or under the Notes and such
application is accompanied by a copy of the form of
proxy or other communication which such applicants
propose to transmit, then the Trustee shall, within
five Business Days after the receipt of such
application, at its election, either
(i) afford to such applicants access to the
information preserved at the time by the
Trustee in accordance with the provisions of
subsection (a) of this Section; or
(ii) inform such applicants as to the
approximate number of Holders whose names and
addresses appear in the
information preserved at the time by the
Trustee, in accordance with the provisions of
such subsection (a) and as to the approximate
cost of mailing to such Holders the form of
proxy or other communication, if any,
specified in such application.
If the Trustee shall elect not to afford to such
applicants access to such information, the Trustee
shall, upon the written request of such applicants,
mail to each Holder of Notes, whose name and address
appears in the information preserved at the time by
the Trustee in accordance with the provisions of such
subsection (a) a copy of the form of proxy or other
communication which is specified in such request,
with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment,
or provision for the payment, of the reasonable
expenses of mailing, unless within five days after
such tender the Trustee shall mail to such applicants
and file with the Commission, together with a copy
of the material to be mailed, a written statement to
the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interests of
the Holders or would be in violation of applicable law.
Such written statement shall specify the basis of such
opinion. If the Commission, after opportunity for a
hearing upon the objections specified in the written
statement so filed, shall enter an order refusing to
sustain any of such objections or if, after the entry
of an order sustaining one or more of such objections,
the Commission shall find, after notice and opportunity
for hearing, that all the objections so sustained
have been met, and shall enter an order so declaring,
the Trustee shall mail copies of such material to all
such Holders with reasonable promptness after the
entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting
their application.
(c) Each and every Holder of a Note, by
receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor
the Trustee nor any agent of the Company or the
Trustee shall be held accountable by reason of the
disclosure of any such information as to the names
and addresses of the Holders of Notes in accordance
with the provisions of subsection (b) of this
Section, regardless of the source from which such
information was derived, and that the Trustee shall
not be held accountable by reason of mailing any
material pursuant to a request made under such
subsection (b).
Section 7.03 REPORTS BY THE COMPANY. The Company
shall:
25
(a) file with the Trustee, within 15 days after
the Company is required to file the same with the
Commission, copies of the annual reports and of the
information, documents and other reports (or copies
of such portions of any of the foregoing as the
Commission may from time to time by rules and
regulations prescribe) which the Company may be
required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Securities
Exchange Act of 1934; or, if the Company is not
required to file information, documents or reports
pursuant to either of said Sections, then it will
file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from
time to time by the Commission, such of the
supplementary and periodic information, documents and
reports which may be required pursuant to Section 13
of the Securities Exchange Act of 1934 in respect of
a security listed and registered on a national
securities exchange as may be prescribed from time to
time in such rules and regulations;
(b) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from
time to time by the Commission, such additional
information, documents and reports with respect to
compliance by the Company with the conditions and
covenants of this Indenture as may be required from
time to time by such rules and regulations. Filing of
such information, documents and reports with the Trustee
is for informational purposes only and the Trustee's
receipt of such shall not constitute constructive
notice of any information contained therein or
determinable from information contained therein,
including the Company's compliance with any of its
covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers'
Certificates); and
(c) transmit by mail to all Holders of Notes,
within 30 days after the filing thereof with the
Trustee in the manner and to the extent provided in
Section 7.04(d), such summaries of any information,
documents and reports required to be filed by the
Company pursuant to paragraphs (a) and (b) of this
Section as may be required by rules and regulations
prescribed from time to time by the Commission.
Note that, for purposes of this Section 7.03, the
Company's responsibility to file information with the
Trustee which is also filed with the Commission,
shall be deemed to be satisfied by the posting of the
Company's filings with the Commission on the
Commission's website (www.sec.gov/edgar).
Section 7.04 REPORTS BY THE TRUSTEE.
(a) Annually, not later than August 15 of each year,
the Trustee shall transmit by mail a brief report dated
as of such date that complies with Section 313(a) of
the TIA (to the extent required by such Section).
(b) The Trustee shall from time to time transmit
by mail brief reports that comply, both in content
and date of delivery, with Section 313(b) of the TIA
(to the extent required by such Section).
(c) A copy of each such report filed pursuant to
this section shall, at the time of such transmission
to such Holders, be filed by the Trustee with each
stock exchange upon which any Notes are listed and
also with the Commission. The Company will notify the
Trustee promptly in writing upon the listing of such
Notes on any stock exchange or any delisting thereof.
26
(d) Except as otherwise described in Section
7.03, reports pursuant to this Section shall be
transmitted:
(1) by mail to all Holders of Notes, as their
names and addresses appear in the register for
the Notes;
(2) by mail to such Holders of Notes as have,
within the two years preceding such
transmission, filed their names and addresses
with the Trustee for such purpose;
(3) by mail, except in the case of reports
pursuant to Section 7.04(b) and (c) hereof, to
all Holders of Notes whose names and addresses
have been furnished to or received by the
Trustee pursuant to Section 7.0 and
7.02(a)(ii) hereof; and
(4) at the time such report is transmitted to
the Holders of the Notes, to each exchange on
which Notes are listed and also with the
Commission.
ARTICLE VIII
REMEDIES OF THE TRUSTEE AND
NOTEHOLDERS ON
EVENTS OF DEFAULT
Section 8.01 EVENTS OF DEFAULT.
(a) If one or more of the following Events of
Default with respect to the Notes of any series shall
have occurred and be continuing:
(1) default in the payment of any installment
of interest upon any Note of such series as
and when the same shall become due and
payable, and continuance of such default for a
period of thirty (30) days, provided, however,
that a valid extension of the interest payment
period or deferral of interest payment by the
Company as contemplated in Section 2.15 shall
not constitute a failure to pay interest for
this purpose;
(2) default in the payment of the principal of
or any premium on any Note of such series as
and when the same shall become due and
payable, and continuance of such default for a
period of one (1) day;
(3) failure on the part of the Company duly to
observe or perform any other covenants or
agreements on the part of the Company
contained in this Indenture (other than a
covenant or agreement that has been expressly
included in this Indenture solely for the
benefit of one or more series of Notes other
than such series) for a period of sixty (60)
days after the date on which written notice
specifying such failure, stating that such
notice is a "Notice of Default" hereunder and
demanding that the Company remedy the same,
shall have been given to the Company by the
Trustee by registered mail, or to the Company
and the Trustee by the Holders of not less
than 33% in aggregate principal amount of the
Notes of such series at the time outstanding;
(4) a court having jurisdiction in the
premises shall enter a decree or order for
relief in respect of the Company in an
involuntary case under any applicable
bankruptcy, insolvency or other similar law now or
hereafter in effect, adjudging the Company a
27
bankrupt or insolvent, or approving
as properly filed a petition seeking
reorganization, arrangement, adjustment or
composition of or in respect of the Company
under any applicable law, or appointing a
receiver, liquidator, assignee, custodian,
trustee or sequestrator (or similar official)
of the Company or for any substantial part of
the property of the Company, or ordering the
winding up or liquidation of the affairs of
the Company, and such decree or order shall
remain unstayed and in effect for a period of
sixty (60) consecutive days;
(5) the Company shall commence a voluntary
case or proceeding under any applicable
bankruptcy, insolvency, reorganization or
other similar law now or hereafter in effect
or any other case or proceeding to be
adjudicated a bankrupt or insolvent, or
consent to the entry of a decree or order for
relief in an involuntary case under any such
law, or to the commencement of any bankruptcy
or insolvency case or proceeding against it,
or the filing by it of a petition or answer or
consent seeking reorganization or relief under
any applicable law, or consent to the filing
of such petition or to the appointment or
taking possession by a receiver, liquidator,
assignee, custodian, trustee or sequestrator
(or similar official) of the Company or for
any substantial part of the property of the
Company, or make any general assignment for
the benefit of creditors, or the notice by it
in writing of its inability to pay its debts
generally as they become due, or the taking of
any corporate action by the Company in
furtherance of any such action; or
(6) any other Event of Default specified with
respect to Notes of any series pursuant to
Section 2.05 hereof;
then, unless the principal of and interest on all of
the Notes shall have already become due and payable,
either the Trustee or the Holders of a majority in
aggregate principal amount of the Notes of such
series then outstanding, by notice in writing to the
Company (and to the Trustee if given by such
Holders), may declare the principal of and interest
on all the Notes of such series to be due and payable
immediately and upon any such declaration the same
shall become immediately due and payable, anything in
this Indenture or in the Notes of such series
contained to the contrary notwithstanding; provided,
however, that if an Event of Default shall have occurred and
be continuing with respect to more than one series of
Notes, the Trustee or the Holders of a majority in
aggregate principal amount of the Outstanding Notes
of all such series, considered as one class, may make
such declaration of acceleration, and not the Holders
of the Notes of any one of such series.
The foregoing paragraph, however, is subject to the
condition that if, at any time after the principal of
and interest on the Notes of any series shall have
been so declared due and payable, and before any
judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter
provided, the Company shall pay or shall deposit with
the Trustee a sum sufficient to pay all matured
installments of interest upon all of the Notes of
such series and the principal of and any premium on
any and all Notes of such series which shall have
become due otherwise than by acceleration (with
interest on overdue installments of interest, to the
extent that payment of such interest is enforceable
under applicable law, and on such principal and
applicable premium at the rate borne by the Notes of
such series to the date of such payment or deposit)
and all sums paid or advanced by the Trustee
hereunder, the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee
under Section 9.06 hereof, and any and all Events of
Default, other than the non-payment of principal of
and accrued interest on any Notes which shall have
become due solely by acceleration of maturity, shall
have been cured or
28
waived, then and in every such case such payment or
deposit shall cause an automatic waiver of the Event
of Default and its consequences and shall cause an
automatic rescission and annulment of the acceleration
of the Notes of such series; but no such waiver or
rescission and annulment shall extend to or shall
affect any subsequent default, or shall impair any
right consequent thereon.
(b) If the Trustee shall have proceeded to
enforce any right under this Indenture and such
proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any
other reason or shall have been determined adversely
to the Trustee, then and in every such case the
Company and the Trustee shall be restored
respectively to their several positions and rights
hereunder, and all rights, remedies and powers of the
Company and the Trustee shall continue as though no
such proceeding had been taken.
Section 8.02 COLLECTION OF INDEBTEDNESS BY TRUSTEE;
TRUSTEE MAY PROVE DEBT.
(a) The Company covenants that if an Event of
Default described in clause (a)(1) or (a)(2) of
Section 8.01 hereof shall have occurred and be
continuing, then, upon demand of the Trustee, the
Company shall pay to the Trustee, for the benefit of
the Holders of the Notes of the series with respect
to which Event of Default shall have occurred and is
continuing, the whole amount that then shall have so
become due and payable on all such Notes for
principal or interest, as the case may be, with
interest upon the overdue principal and any premium
and (to the extent that payment of such interest is
enforceable under applicable law) upon the overdue
installments of interest at the rate borne by such
Notes; and, in addition thereto, such further amounts
as shall be sufficient to cover the costs and
expenses of collection, including reasonable
compensation to the Trustee, its agents, attorneys
and counsel, any expenses or liabilities incurred by
the Trustee hereunder other than through its
negligence or bad faith. Until such demand is made by
the Trustee, the Company may pay the principal of and
interest on such Notes to the Holders, whether or not
such Notes be overdue.
(b) In case the Company shall fail forthwith to pay
such amounts upon such demand, the Trustee, in its own
name and as trustee of an express trust, shall be
entitled and empowered to institute any actions or
proceedings at law or in equity for the collection of
the sums so due and unpaid, and may enforce any such
judgment or final decree against the Company or any
other obligor on such Notes and collect in the manner
provided by law out of the property of the Company or
any other obligor on such Notes wherever situated,
the moneys adjudged or decreed to be payable.
(c) In case there shall be pending proceedings
relative to the Company or any other obligor upon the
Notes under Title 11 of the United States Code or any
other applicable Federal or state bankruptcy,
insolvency or other similar law, or in case a
receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar
official shall have been appointed for or taken
possession of the Company or its property or such
other obligor, or in case of any other comparable
judicial proceedings relative to the Company or such
other obligor, or to the creditors or property of the
Company or such other obligor, the Trustee,
irrespective of whether the principal of the Notes
shall then be due and payable as therein expressed or
by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand
pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such
proceedings or otherwise:
29
(1) to file and prove a claim or claims for
the whole amount of the principal and interest owing
and unpaid in respect of the Notes, and to file such
other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee
and of the Noteholders allowed in any judicial
proceedings relative to the Company or such other
obligor, or to the creditors or property of the
Company or such other obligor; and
(2) to collect and receive any moneys or
other property payable or deliverable on any such
claims, and to distribute all amounts received
with respect to the claims of the Noteholders and
of the Trustee on their behalf; and any trustee,
receiver, liquidator, custodian or other similar
official is hereby authorized by each of the
Noteholders to make payments to the Trustee, and,
in the event that the Trustee shall consent to
the making of the payments directly to the
Noteholders, to pay to Trustee such amounts due
pursuant to Section 9.06 hereof.
(d) Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to
or vote for or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes of
any series or the rights of any Holder thereof,
or to authorize the Trustee to vote in respect of
the claim of any Holder in any such proceeding
except to vote for the election of a trustee in
bankruptcy or similar person.
(e) All rights of action and of asserting claims
under this Indenture, or under any of the Notes may
be prosecuted and enforced by the Trustee without the
possession of any of the Notes or the production
thereof at any trial or other proceedings relative
thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery
of judgment, subject to the payment of the expenses,
disbursements and compensation of the Trustee and its
agents, attorneys and counsel, shall be for the
ratable benefit of the Holders of the Notes in
respect of which such action was taken.
(f) In any proceedings brought by the Trustee
(and also any proceedings involving the
interpretation of any provision of this Indenture to
which the Trustee shall be a party), the Trustee
shall be held to represent all the Holders of the
Notes in respect to which action was taken, and it
shall not be necessary to make any Holders of such
Notes parties to any such proceedings.
Section 8.03 APPLICATION OF PROCEEDS. Any moneys
collected by the Trustee with respect to any of the
Notes pursuant to this Article shall be applied in
the following order, at the date or dates fixed by
the Trustee for the distribution of such moneys, upon
presentation of the several Notes, and stamping
thereon the payment, if only partially paid, and upon
surrender thereof if fully paid.
FIRST: To the payment of all amounts due to the
Trustee pursuant to Section 9.06 hereof;
SECOND: In case the principal of the outstanding
Notes in respect of which such moneys have been
collected shall not have become due and be unpaid, to
the payment of interest on the Notes, in the order of
the maturity of the installments of such interest,
with interest (to the extent allowed by law) upon the
overdue installments of interest at the rate borne by
the Notes, such payments to be made ratably to the
persons entitled thereto, and then to the payment to
the Holders entitled thereto of the unpaid principal
of and applicable premium on any of the Notes which
shall have become due (other than Notes previously
called for redemption for the payment of which moneys
are held pursuant to the provisions of this
Indenture), whether at stated maturity or by
redemption, in the order of their due dates,
beginning with the earliest due
30
date, and if the amount available is not sufficient to pay
in full all Notes due on any particular date, then to
the payment thereof ratably, according to the amounts of
principal and applicable premium due on that date, to
the Holders entitled thereto, without any
discrimination or privilege;
THIRD: In case the principal of the outstanding
Notes in respect of which such moneys have been
collected shall have become due, by declaration or
otherwise, to the payment of the whole amount then
owing and unpaid upon the Notes for principal and any
premium and interest thereon, with interest on the
overdue principal and any premium and (to the extent
allowed by law) upon overdue installments of interest
at the rate borne by the Notes; and in case such
moneys shall be insufficient to pay in full the whole
amount so due and unpaid upon the Notes, then to the
payment of such principal and any premium and
interest without preference or priority of principal
and any premium over interest, or of interest over
principal and any premium or of any installment of
interest over any other installment of interest, or
of any Note over any other Note, ratably to the
aggregate of such principal and any premium and
accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to
the Company or its successors or assigns, or to
whomsoever may lawfully be entitled to the same, or
as a court of competent jurisdiction may determine.
Section 8.04 LIMITATIONS ON SUITS BY NOTEHOLDERS.
(a) No Holder of any Note of any series shall
have any right by virtue of or by availing of any
provision of this Indenture to institute any suit,
action or proceeding in equity or at law upon or
under or with respect to this Indenture or for the
appointment of a receiver or trustee, or for any
other remedy hereunder, unless such Holder previously
shall have given to the Trustee written notice of an
Event of Default with respect to such Note and of the
continuance thereof, as hereinabove provided, and
unless also Noteholders of a majority in aggregate
principal amount of the Notes of all series then
outstanding in respect of which an Event of Default
has occurred and is continuing, considered as one
class, shall have made written request upon the
Trustee to institute such action, suit or proceeding
in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as
it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and
the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity, shall have
neglected or refused to institute any such action,
suit or proceeding; it being understood and intended,
and being expressly covenanted by the taker and
Holder of every Note of any series with every other
taker and Holder and the Trustee, that no one or more
Holders of Notes of such series shall have any right
in any manner whatever by virtue or by availing of
any provision of this Indenture to affect, disturb or
prejudice the rights of any other Holder of Notes of
such series, or to obtain or seek to obtain priority
over or preference to any other such Holder or to
enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and
common benefit of all Holders of Notes of such
series. For the protection and enforcement of the
provisions of this Section, each and every Noteholder
and the Trustee shall be entitled to such relief as
can be given either at law or in equity.
(b) Notwithstanding any other provision in this
Indenture, however, the rights of any Holder of any
Note to receive payment of the principal of and any
premium and interest on such Note, on or after the
respective due dates expressed in such Note or on the
applicable redemption date, or to institute suit for
the enforcement of any such payment on or after such
respective dates are absolute and unconditional, and
shall not be impaired or affected without the consent
of such Holder.
31
Section 8.05 SUITS FOR ENFORCEMENT. In case an
Event of Default has occurred, has not been waived
and is continuing hereunder, the Trustee may in its
discretion proceed to protect and enforce the rights
vested in it by this Indenture by such appropriate
judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any of such rights,
either by suit in equity or by action at law or by
proceeding in bankruptcy or otherwise, whether for
the specific enforcement of any covenant or agreement
contained in this Indenture or in aid of the exercise
of any power granted to it under this Indenture, or
to enforce any other legal or equitable right vested
in the Trustee by this Indenture or by law.
Section 8.06 POWERS AND REMEDIES CUMULATIVE; DELAY
OR OMISSION NOT WAIVER OF DEFAULT. No right or remedy
herein conferred upon or reserved to the Trustee or
to the Holders of Notes is intended to be exclusive
of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing
at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion
or employment of any other appropriate right or
remedy.
No delay or omission of the Trustee or of any
Holder of Notes to exercise any right or power
accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right
or power or shall be construed to be a waiver of any
such Event of Default or an acquiescence therein;
and, subject to Section 8.04, every right and power
given by this Indenture or by law to the Trustee or
to the Holders of Notes may be exercised from time to
time, and as often as shall be deemed expedient, by
the Trustee or by the Holders of Notes, as the case
may be.
Section 8.07 DIRECTION OF PROCEEDINGS AND WAIVER OF
DEFAULTS BY MAJORITY OF NOTEHOLDERS.
(a) The Holders of a majority in aggregate
principal amount of the Notes of any series at the
time outstanding shall have the right to direct the
time, method, and place of conducting any proceeding
for any remedy available to the Trustee, or
exercising any trust or power conferred on the
Trustee; provided, however, that if an Event of
Default shall have occurred and be continuing with
respect to more than one series of Notes, the Holders
of a majority in aggregate principal amount of the
Outstanding Notes of all such series, considered as
one class, shall have the right to make such
direction, and not the Holders of the Notes of any
one of such series; provided, further, that such
direction shall not be otherwise than in accordance
with law and the provisions of this Indenture; and
provided further that (subject to Section 9.01
hereof) the Trustee shall have the right to decline
to follow any such direction if the Trustee being
advised by counsel determines that the action or
proceeding so directed may not lawfully be taken or
if the Trustee in good faith by its board of
directors or trustees, executive committee, or a
trust committee of directors or trustees or
responsible officers shall determine that the action
or proceeding so directed would involve the Trustee
in personal liability. Nothing in this Indenture
shall impair the right of the Trustee in its
discretion to take any action deemed proper by the
Trustee and which is not inconsistent with such
direction or directions by Noteholders.
(b) The Holders of a majority in aggregate
principal amount of the Notes of any series at the
time outstanding may on behalf of all of the Holders
of the Notes of such series waive any past default or
Event of Default hereunder and its consequences
except a default in the payment of principal of or
any premium or interest on the Notes of such series.
Upon any such waiver the Company, the Trustee and
the Holders of the Notes of such series shall be restored
32
to their former positions and rights hereunder,
respectively, but no such waiver shall extend to any
subsequent or other default or Event of Default or
impair any right consequent thereon. Upon such waiver,
such default shall cease to exist and be deemed to have
been cured and not to be continuing, and any Event of Default
arising therefrom shall be deemed to have been cured
and not to be continuing, for every purpose of this
Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or
impair any right consequent thereon.
Section 8.08 NOTICE OF DEFAULT. The Trustee shall,
within 90 days after the occurrence of a default with
respect to the Notes of any series, give to all
Holders of the Notes of such series, in the manner
provided in Section 16.10, notice of such default
actually known to the Trustee, unless such default
shall have been cured or waived before the giving of
such notice, the term "default" for the purpose of
this Section 8.08 being hereby defined to be any
event which is or after notice or lapse of time or
both would become an Event of Default; provided that,
except in the case of default in the payment of the
principal of or any premium or interest on any of the
Notes of such series, or in the payment of any
sinking or purchase fund installments, the Trustee
shall be protected in withholding such notice if and
so long as its board of directors or trustees,
executive committee, or a trust committee of
directors or trustees or responsible officers in good
faith determines that the withholding of such notice
is in the interests of the Holders of the Notes of
such series.
Section 8.09 UNDERTAKING TO PAY COSTS. All parties
to this Indenture agree, and each Holder of any Note
by acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for
any action taken, suffered or omitted by it as
Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess
reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims
or defenses made by such party litigant; but this
Section 8.09 shall not apply to any suit instituted
by the Trustee, or to any suit instituted by any
Noteholder, or group of Noteholders, holding in the
aggregate more than 10% in principal amount of the
Notes of all series in respect of which such suit may
be brought, considered as one class, or to any suit
instituted by any Noteholder for the enforcement of
the payment of the principal of or any premium or
interest on any Note on or after the due date
expressed in such Note or the applicable redemption
date.
Section 8.10 RESTORATION OF RIGHTS ON ABANDONMENT
OF PROCEEDINGS. In case the Trustee or any Holder
shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been
discontinued or abandoned for any reason, or shall
have been determined adversely to the Trustee or to
such Holder, then, and in every such case, the
Company, the Trustee and the Holders shall be
restored respectively to their former positions and
rights hereunder, and all rights, remedies and powers
of the Company, the Trustee and the Holders shall
continue as though no such proceedings had been
taken.
Section 8.11 WAIVER OF USURY, STAY OR EXTENSION
LAWS. The Company covenants (to the extent that it
may lawfully do so) that it will not at any time
insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any usury,
stay or extension law wherever enacted, now or at any
time hereafter in force, which may affect the
covenants or the performance of this Indenture; and
the Company (to the extent that it may lawfully do
so) hereby expressly waives all benefit or advantage
of any such law and covenants that it will not
hinder, delay or impede the execution of any power
herein granted to the Trustee,
33
but will suffer and permit the execution of every such power
as though no such law had been enacted.
ARTICLE IX
CONCERNING THE TRUSTEE
Section 9.01 DUTIES AND RESPONSIBILITIES OF
TRUSTEE.
(a) The Trustee, prior to the occurrence of an
Event of Default and after the curing of all Events
of Default which may have occurred, undertakes to
perform such duties and only such duties as are
specifically set forth in this Indenture. If an Event
of Default has occurred (which has not been cured or
waived), the Trustee shall exercise such of the
rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their
exercise, as a prudent man would exercise or use
under the circumstances in the conduct of his own
affairs.
(b) No provisions of this Indenture shall be
construed to relieve the Trustee from liability for
its own negligent action, its own negligent failure
to act or its own willful misconduct, except that:
(1) prior to the occurrence of any Event of Default
and after the curing or waiving of all Events of
Default which may have occurred:
(A) the duties and obligations of the Trustee
shall be determined solely by the express
provisions of this Indenture, and the Trustee
shall not be liable except for the performance
of such duties and obligations as are
specifically set forth in this Indenture, and
no implied covenants or obligations shall be read
into this Indenture against the Trustee;
and
(B) in the absence of bad faith on the part of
the Trustee, the Trustee may conclusively rely, as
to the truth of the statements and the correctness
of the opinions expressed therein, upon any
certificates or opinions furnished to the
Trustee and conforming to the requirements
of this Indenture; but, in the case of any
such certificates or opinions which by any
provision hereof are specifically required
to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same
to determine whether or not they conform to
the requirements of this Indenture (but
need not confirm or investigate the
accuracy of mathematical calculations or
other facts stated therein);
(2) the Trustee shall not be liable for any
error of judgment made in good faith by a
Responsible Officer or Officers of the
Trustee, unless it shall be proved that
the Trustee was negligent in ascertaining
the pertinent facts; and
(3) the Trustee shall not be liable with
respect to any action taken or omitted to be
taken by it in good faith in accordance with
the direction, pursuant to this Indenture,
of the Holders of a majority in aggregate
principal amount of the Notes of any one or
more series, as provided herein, including,
but not limited to, Section 8.07 hereof
relating to the time, method and place of
conducting any proceeding for any remedy
available to the Trustee, or exercising any
trust or power conferred upon the Trustee
under this Indenture with respect to the
Notes of such series.
34
(c) No provision of this Indenture shall require
the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(d) Whether or not therein expressly so
provided, every provision of this Indenture relating
to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject
to the provisions of this Section.
Section 9.02 RELIANCE ON DOCUMENTS, OPINIONS, ETC.
Except as otherwise provided in Section 9.01 hereof:
(a) the Trustee may conclusively rely and shall
be protected in acting or refraining from acting upon
any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order,
note or other paper or document believed by it to be
genuine and to have been signed or presented by the
proper party or parties;
(b) any request, direction, order or demand of
the Company mentioned herein shall be sufficiently
evidenced by an Officers' Certificate (unless other
evidence in respect thereof is herein specifically
prescribed); and any Board Resolution may be
evidenced to the Trustee by a copy thereof certified
by the Secretary or an Assistant Secretary of the
Company;
(c) the Trustee may consult with counsel of its
selection and any advice or Opinion of Counsel shall
be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with such
advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by
this Indenture at the request, order or direction of
any of the Noteholders, pursuant to this Indenture,
unless such Noteholders shall have offered to the
Trustee security or indemnity satisfactory to it
against the costs, expenses and liabilities which may
be incurred by such exercise;
(e) the Trustee shall not be liable for any action
taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the
discretion or rights or powers conferred upon it by
this Indenture;
(f) prior to the occurrence of an Event of Default
hereunder and after the curing or waiving of all Events
of Default, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, note or
other paper or document, unless requested in writing
to do so by the Holders of a majority in aggregate
principal amount of the then outstanding Notes of any
series; provided that if the payment within a
reasonable time to the Trustee of the costs, expenses
or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of
the Trustee, not reasonably assured to the Trustee by
the security afforded to it by this Indenture, the
Trustee may require indemnity satisfactory to it against
such expense or liability as a condition to so
proceeding;
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or through agents or attorneys; provided
that the Trustee shall not be
35
liable for the conduct or acts of any such agent or
attorney that shall have been appointed in accordance
herewith with due care; and
(h) the rights, privileges, protections, immunities
and benefits given to the Trustee, including, without
limitation, its right to be indemnified, are extended
to, and shall be enforceable by, the Trustee in each of
its capacities hereunder, and eachagent, custodian and
other Person employed to act hereunder.
Section 9.03 NO RESPONSIBILITY FOR RECITALS, ETC.
The recitals contained herein and in the Notes
(except in the certificate of authentication) shall
be taken as the statements of the Company, and the
Trustee assumes no responsibility for the correctness
of the same. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or
of the Notes. The Trustee shall not be accountable
for the use or application by the Company of any
Notes or the proceeds of any Notes authenticated and
delivered by the Trustee in conformity with this
Indenture.
Section 9.04 TRUSTEE, AUTHENTICATING AGENT, PAYING
AGENT OR REGISTRAR MAY OWN NOTES. The Trustee and any
Authenticating Agent or paying agent in its
individual or other capacity, may become the owner or
pledgee of Notes with the same rights it would have
if it were not Trustee, Authenticating Agent or
paying agent.
Section 9.05 MONEYS TO BE HELD IN TRUST. Subject to
Section 5.05 hereof, all moneys received by the
Trustee shall, until used or applied as herein
provided, be held in trust for the purposes for which
they were received, but need not be segregated from
other funds except to the extent required by law.
The Trustee may allow and credit to the Company
interest on any money received hereunder at such
rate, if any, as may be agreed upon by the Company
and the Trustee from time to time as may be permitted
by law.
Section 9.06 COMPENSATION AND EXPENSES OF TRUSTEE.
The Company covenants and agrees to pay to the
Trustee from time to time, and the Trustee shall be
entitled to, such compensation as the Company and the
Trustee shall from time to time agree in writing
(which shall not be limited by any law in regard to
the compensation of a trustee of an express trust),
and the Company shall pay or reimburse the Trustee
upon its request for all reasonable expenses,
disbursements and advances incurred or made by the
Trustee in accordance with this Indenture (including
the reasonable compensation and the reasonable
expenses and disbursements of its counsel and agents,
including any Authenticating Agents, and of all
persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from
its negligence or bad faith. The Company also
covenants to indemnify each of the Trustee or any
predecessor and their agents, directors, employees,
and nominees for, and to hold them harmless against,
any loss, liability or expense incurred without
negligence or bad faith on the part of them
and arising out of or in connection with the
acceptance or administration of this trust,
including the costs and expenses of defending
themselves against any claim or liability. The
obligations of the Company under this Section
9.06 to compensate the Trustee and to pay
or reimburse the Trustee for expenses, disbursements
and advances shall constitute additional indebtedness
hereunder. Such additional indebtedness shall be
secured by a lien prior to that of the Notes upon
all property and funds held or collected by the
Trustee as such, except funds held in trust for
the benefit of the Holders of any particular Notes.
When the Trustee incurs expenses or renders services
in connection with an Event of Default specified in
Section 801(a)(4) or Section 801(a)(5), the expenses
(including the reasonable charges and expenses of its
counsel) and the compensation for the services are
intended to constitute expenses of administration
under any applicable Federal or state bankruptcy,
insolvency or other similar law. The provisions
of this Section 9.06 shall survive termination of
this Indenture.
Section 9.07 OFFICERS' CERTIFICATE AS EVIDENCE.
Whenever in the administration of this Indenture, the
Trustee shall deem it necessary or desirable that a
matter be proved or established prior to the taking,
suffering or omitting of any action hereunder, such
matter (unless other evidence in respect thereof is
herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee,
be deemed to be conclusively proved and established
by an Officers' Certificate delivered to the Trustee,
and such Officers' Certificate, in
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the absence of negligence or bad faith on the part of
the Trustee, shall be full warrant to the Trustee for any
action taken, suffered or omitted by it under this Indenture
in reliance thereon.
Section 9.08 CONFLICTING INTEREST OF TRUSTEE. The
Trustee shall be subject to and shall comply with the
provisions of Section 310(b) of the TIA. Nothing in
this Indenture shall be deemed to prohibit the
Trustee or the Company from making any application
permitted pursuant to such section.
Section 9.09 EXISTENCE AND ELIGIBILITY OF TRUSTEE.
There shall at all times be a Trustee hereunder which
Trustee shall at all times be a corporation organized
and doing business under the laws of the United
States or any State thereof or of the District of
Columbia having a combined capital and surplus of at
least $50,000,000 and which is authorized under such
laws to exercise corporate trust powers and is
subject to supervision or examination by Federal or
State authorities. If such corporation publishes
reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid
authority, then for the purposes of this Section
9.09, the combined capital and surplus shall be
deemed to be as set forth in its most recent report
of condition so published. No obligor upon the Notes
or Person directly or indirectly controlling,
controlled by, or under common control with such
obligor shall serve as Trustee. If at any time the
Trustee shall cease to be eligible in accordance with
this Section 9.09, the Trustee shall resign
immediately in the manner and with the effect
specified in Section 9.10 hereof.
Section 9.10 RESIGNATION OR REMOVAL OF TRUSTEE.
(a) Pursuant to the provisions of this Article,
the Trustee may at any time resign and be discharged
of the trusts created by this Indenture by giving
written notice to the Company specifying the day upon
which such resignation shall take effect, and such
resignation shall take effect immediately upon the
later of the appointment of a successor trustee and
such day.
(b) Any Trustee may be removed at any time with
respect to the Notes of any series by an instrument
or concurrent instruments in writing filed with such
Trustee and signed and acknowledged by the Holders of
a majority in aggregate principal amount of the then
outstanding Notes of such series or by their
attorneys in fact duly authorized.
(c) So long as no Event of Default has occurred and
is continuing, and no event has occurred and is
continuing that, with the giving of notice or the
lapse of time or both, would become an Event of
Default, the Company may remove any Trustee upon
written notice to the Holder of each Note Outstanding
and the Trustee and appoint a successor Trustee
meeting the requirements of Section 9.09. The Company
or the successor Trustee shall give notice to the
Holders, in the manner provided in Section 16.10, of
such removal and appointment within 30 days of such
removal and appointment.
(d) If at any time (i) the Trustee shall cease
to be eligible in accordance with Section 9.09 hereof
and shall fail to resign after written request
therefor by the Company or by any Holder who has been
a bona fide Holder for at least six months, (ii) the
Trustee shall fail to comply with Section 9.08 hereof
after written request therefor by the Company or any
such Holder, or (iii) the Trustee shall become
incapable of acting or shall be adjudged a bankrupt
or insolvent or a receiver of the Trustee or its
property shall be appointed or any public officer
shall take charge or control of the Trustee or of its
property or affairs for the purpose of
rehabilitation, conservation or liquidation, then the
Trustee may be removed forthwith by an instrument or
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concurrent instruments in writing filed with the
Trustee and either:
(1) signed by the Chairman, the President or
any Vice President of the Company and attested
by the Secretary or an Assistant Secretary of
the Company; or
(2) signed and acknowledged by the Holders of
a majority in principal amount of outstanding
Notes or by their attorneys in fact duly
authorized.
(e) Any resignation or removal of the Trustee
shall not become effective until acceptance of
appointment by the successor Trustee as provided in
Section 9.11 hereof.
Section 9.11 APPOINTMENT OF SUCCESSOR TRUSTEE.
(a) If at any time the Trustee shall resign or
be removed, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee.
(b) The Company shall provide written notice of
its appointment of a Successor Trustee to the Holder
of each Note Outstanding following any such
appointment.
(c) If no appointment of a successor Trustee
shall be made pursuant to Section 9.11(a) hereof
within 60 days after appointment shall be required,
any Noteholder or the resigning Trustee may apply to
any court of competent jurisdiction to appoint a
successor Trustee. Said court may thereupon after
such notice, if any, as such court may deem proper
and prescribe, appoint a successor Trustee.
(d) Any Trustee appointed under this Section
9.11 as a successor Trustee shall be a bank or trust
company eligible under Section 9.09 hereof and
qualified under Section 9.08 hereof.
Section 9.12 ACCEPTANCE BY SUCCESSOR TRUSTEE.
(a) Any successor Trustee appointed as provided
in Section 9.11 hereof shall execute, acknowledge and
deliver to the Company and to its predecessor Trustee
an instrument accepting such appointment hereunder,
and thereupon the resignation or removal of the
predecessor Trustee shall become effective and such
successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights,
powers, duties and obligations of its predecessor
hereunder, with like effect as if originally named as
Trustee herein; but nevertheless, on the written
request of the Company or of the successor Trustee,
the Trustee ceasing to act shall, upon payment of any
amounts then due it pursuant to Section 9.06 hereof,
execute and deliver an instrument transferring to
such successor Trustee all the rights and powers of
the Trustee so ceasing to act. Upon request of any
such successor Trustee, the Company shall execute any
and all instruments in writing in order more fully
and certainly to vest in and confirm to such
successor Trustee all such rights and powers. Any
Trustee ceasing to act shall, nevertheless, retain a
lien upon all property or funds held or collected by
such Trustee to secure any amounts then due it
pursuant to Section 9.06 hereof.
(b) No successor Trustee shall accept appointment as
provided in this Section 9.12 unless at the time of
such acceptance such successor Trustee shall be
qualified under Section 9.08 hereof and eligible
under Section 9.09 hereof.
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(c) Upon acceptance of appointment by a
successor Trustee as provided in this Section 9.12,
the successor Trustee shall mail notice of its
succession hereunder to all Holders of Notes as the
names and addresses of such Holders appear on the
registry books.
Section 9.13 SUCCESSION BY MERGER, ETC.
(a) Any corporation into which the Trustee may
be merged or converted or with which it may be
consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation
succeeding to or purchasing all or substantially
all of the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder
without the execution or filing of any paper or
any further act on the part of any of the parties
hereto, provided such corporation shall be
otherwise qualified and eligible under this Article.
(b) If at the time such successor to the Trustee
shall succeed to the trusts created by this Indenture
any of the Notes shall have been authenticated but
not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any
predecessor Trustee, and deliver such Notes so
authenticated; and in case at that time any of the
Notes shall not have been authenticated, any
successor to the Trustee may authenticate such Notes
either in the name of any predecessor hereunder or in
the name of the successor Trustee; and in all such
cases such certificates shall have the full force
which it is anywhere in the Notes or in this
Indenture provided that the certificates of the
Trustee shall have; provided that the right to adopt
the certificate of authentication of any predecessor
Trustee or authenticate Notes in the name of any
predecessor Trustee shall apply only to its successor
or successors by merger, conversion or consolidation.
Section 9.14 LIMITATIONS ON RIGHTS OF TRUSTEE AS A
CREDITOR. The Trustee shall be subject to, and shall
comply with, the provisions of Section 311 of the
TIA.
Section 9.15 AUTHENTICATING AGENT.
(a) There may be one or more Authenticating
Agents appointed by the Trustee with the written
consent of the Company, with power to act on its
behalf and subject to the direction of the
Trustee in the authentication and delivery of Notes
in connection with transfers and exchanges under
Sections 2.06, 2.07, 2.08, 2.13, 3.03, and 13.04
hereof, as fully to all intents and purposes as
though such Authenticating Agents had been expressly
authorized by those Sections to authenticate and
deliver Notes. For all purposes of this Indenture,
the authentication and delivery of Notes by any
Authenticating Agent pursuant to this Section 9.15
shall be deemed to be the authentication and delivery
of such Notes "by the Trustee." Any such
Authenticating Agent shall be a bank or trust company
or other Person of the character and qualifications
set forth in Section 9.09 hereof.
(b) Any corporation into which any
Authenticating Agent may be merged or converted or
with which it may be consolidated, or any corporation
resulting from any merger, conversion or
consolidation to which any Authenticating Agent shall
be a party, or any corporation succeeding to the
corporate trust business of any Authenticating Agent,
shall be the successor of such Authenticating Agent
hereunder, if such successor corporation is otherwise
eligible under this Section 9.15, without the
execution or filing of any paper or any further act
on the part of the parties hereto or such
Authenticating Agent or such successor corporation.
(c) Any Authenticating Agent may at any time
resign by giving written notice of resignation to the
Trustee and to the Company. The Trustee may at any
time terminate the
39
agency of any Authenticating Agent by giving written notice
of termination to such Authenticating Agent and to the
Company. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time any
Authenticating Agent shall cease to be eligible under this
Section 9.15, the Trustee may, with the written consent of the
Company, appoint a successor Authenticating Agent, and
upon so doing shall give written notice of such
appointment to the Company and shall mail, in the
manner provided in Section 15.10, notice of such
appointment to the Holders of Notes.
(d) The Trustee agrees to pay to each
Authenticating Agent from time to time reasonable
compensation for its services, and the Trustee shall
be entitled to be reimbursed for such payments, in
accordance with Section 9.06 hereof.
(e) Sections 9.02, 9.03, 9.06, 9.07 and 9.09
hereof shall be applicable to any Authenticating Agent.
ARTICLE X
CONCERNING THE NOTEHOLDERS
Section 10.01 ACTION BY NOTEHOLDERS. Whenever in
this Indenture it is provided that the Holders of a
specified percentage in aggregate principal amount of
the Notes of any series may take any action, the fact
that at the time of taking any such action the
Holders of such specified percentage have joined
therein may be evidenced (a) by any instrument or any
number of instruments of similar tenor executed by
such Noteholders in person or by agent or proxy
appointed in writing, (b) by the record of such
Noteholders voting in favor thereof at any meeting of
Noteholders duly called and held in accordance with
Article XI hereof, or (c) by a combination of such
instrument or instruments and any such record of such
a meeting of Noteholders.
Section 10.02 PROOF OF EXECUTION BY NOTEHOLDERS.
(a) Subject to Sections 9.01, 9.02 and 11.05
hereof, proof of the execution of any instruments by
a Noteholder or the agent or proxy for such Noteholder
shall be sufficient if made in accordance with such
reasonable rules and regulations as may be prescribed
by the Trustee or in such manner as shall be
satisfactory to the Trustee. The ownership of Notes
shall be proved by the register for the Notes
maintained by the Trustee.
(b) The record of any Noteholders' meeting shall
be proven in the manner provided in Section 11.06
hereof.
Section 10.03 PERSONS DEEMED ABSOLUTE OWNERS.
Subject to Sections 2.04(f) and 10.01 hereof, the
Company, the Trustee, any paying agent and any
Authenticating Agent shall deem the person in whose
name any Note shall be registered upon the register
for the Notes to be, and shall treat such person as,
the absolute owner of such Note (whether or not such
Note shall be overdue) for the purpose of receiving
payment of or on account of the principal and
premium, if any, and interest on such Note, and for
all other purposes; and neither the Company nor the
Trustee nor any paying agent nor any Authenticating
Agent shall be affected by any notice to the
contrary. All such payments shall be valid and
effectual to satisfy and discharge the liability upon
any such Note to the extent of the sum or sums so
paid.
Section 10.04 COMPANY-OWNED NOTES DISREGARDED. In
determining whether the
40
Holders of the requisite aggregate principal amount of
outstanding Notes of any series have concurred in any
direction, consent or waiver under this Indenture, Notes that
are owned by the Company or any other obligor on the Notes
or by any person directly or indirectly controlling or
controlled by or under direct or indirect common
control with the Company or any other obligor on the
Notes shall be disregarded and deemed not to be
outstanding for the purpose of any such
determination; provided that, for the purposes of
determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver,
only Notes which a Responsible Officer of the Trustee
actually knows are so owned shall be so disregarded. Notes
so owned which have been pledged in good faith to
third parties may be regarded as outstanding for the
purposes of this Section 10.04 if the pledgee shall
establish the pledgee's right to take action with
respect to such Notes and that the pledgee is not a
person directly or indirectly controlling or controlled
by or under direct or indirect common control with the
Company or any such other obligor. In the case of a
dispute as to such right, the Trustee may rely upon an
Opinion of Counsel and an Officers' Certificate to
establish the foregoing.
Section 10.05 REVOCATION OF CONSENTS; FUTURE
HOLDERS BOUND. Except as may be otherwise required in
the case of a Global Note by the applicable rules and
regulations of the Depositary, at any time prior to
the taking of any action by the Holders of the
percentage in aggregate principal amount of the Notes
of any series specified in this Indenture in
connection with such action, any Holder of a Note,
which has been included in the Notes the Holders of
which have consented to such action may, by filing
written notice with the Trustee at the corporate
trust office of the Trustee and upon proof of
ownership as provided in Section 10.02(a) hereof,
revoke such action so far as it concerns such Note.
Except as aforesaid, any such action taken by the
Holder of any Note shall be conclusive and binding
upon such Holder and upon all future Holders and
owners of such Note and of any Notes issued in
exchange, substitution or upon registration of
transfer therefor, irrespective of whether or not any
notation thereof is made upon such Note or such other
Notes.
Section 10.06 RECORD DATE FOR NOTEHOLDER ACTS. If the
Company shall solicit from the Noteholders any request,
demand, authorization, direction, notice, consent, waiver or
other act, the Company may, at its option, by Board
Resolution, fix in advance a record date for the
determination of Noteholders entitled to give such
request, demand, authorization, direction, notice,
consent, waiver or other act, but the Company shall
have no obligation to do so. If such a record date
is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other act may
be given before or after the record date, but only
the Noteholders of record at the close of business on
the record date shall be deemed to be Noteholders for
the purpose of determining whether Holders of the
requisite aggregate principal amount of outstanding
Notes have authorized or agreed or consented to such
request, demand, authorization, direction, notice,
consent, waiver or other act, and for that purpose
the outstanding Notes shall be computed as of the
record date; provided that no such request, demand,
authorization, direction, notice, consent, waiver or
other act by the Noteholders on the record date shall
be deemed effective unless it shall become effective
pursuant to this Indenture not later than six months
after the record date. Any such record date shall be
at least 30 days prior to the date of the
solicitation to the Noteholders by the Company.
ARTICLE XI
NOTEHOLDERS' MEETING
Section 11.01 PURPOSES OF MEETINGS. A meeting of
Noteholders may be called at any time and from time
to time pursuant to this Article XI for any of the
following purposes:
41
(a) to give any notice to the Company or to the
Trustee, or to give any directions to the
Trustee, or to consent to the waiving of any
Event of Default hereunder and its consequences,
or to take any other action authorized to be
taken by Noteholders pursuant to Article XIII;
(b) to remove the Trustee pursuant to ArticleIX;
(c) to consent to the execution of an indenture
or indentures supplemental hereto pursuant to
Section 13.02 hereof; or
(d) to take any other action authorized to be
taken by or on behalf of the Holders of any
specified aggregate principal amount of the
Notes of any series, as the case may be, under
any other provision of this Indenture or under
applicable law.
Section 11.02 CALL OF MEETINGS BY TRUSTEE. The
Trustee may at any time call a meeting of Holders of
Notes to take any action specified in Section 11.01
hereof, to be held at such time and at such place as
the Trustee shall determine. Notice of every such
meeting of Noteholders, setting forth the time and
the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be
given to Holders of the Notes that may be affected by
the action proposed to be taken at such meeting in
the manner provided in Section 15.10 hereof. Such
notice shall be given not less than 20 nor more than
90 days prior to the date fixed for such meeting.
Section 11.03 CALL OF MEETINGS BY COMPANY OR
NOTEHOLDERS. If at any time the Company, pursuant to
a Board Resolution, or the Holders of at least 10% in
aggregate principal amount of the Notes of all series
then outstanding, considered as one class, shall have
requested the Trustee to call a meeting of
Noteholders, by written request setting forth in
reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have mailed
the notice of such meeting within 20 days after
receipt of such request, then the Company or such
Noteholders may determine the time and the place for
such meeting and may call such meeting to take any
action authorized in Section 11.01 hereof, by giving
notice thereof as provided in Section 11.02 hereof.
Section 11.04 QUALIFICATIONS FOR VOTING. To be
entitled to vote at any meetings of Noteholders a
Person shall (a) be a Holder of one or more Notes
affected by the action proposed to be taken or (b) be
a Person appointed by an instrument in writing as
proxy by a Holder of one or more such Notes. The
only Persons who shall be entitled to be present
or to speak at any meeting of Noteholders shall be
the Persons entitled to vote at such meeting and
their counsel and any representatives (including
employees) of the Trustee and its counsel and any
representatives (including employees) of the Company
and its counsel.
Section 11.05 REGULATIONS.
(a) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting
of Noteholders in regard to proof of the holding of
Notes and of the appointment of proxies, and in
regard to the appointment and duties of inspectors of
votes, the submission and examination of proxies,
certificates andother evidence of the right to vote,
and such other matters concerning the conduct of the
meeting as it shall think fit.
42
(b) The Trustee shall, by an instrument in
writing, appoint a temporary chairman of the
meeting, unless the meeting shall have been called
by the Company or by the Noteholders as provided
in Section 11.03 hereof, in which case the Company
or Noteholders calling the meeting, as the case may
be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by the
Holders of a majority in aggregate principal amount
of the Notes present in person or by proxy at
the meeting.
(c) Subject to Section 10.04 hereof, at any
meeting each Noteholder or proxy shall be entitled to
one vote for each $1,000 principal amount of Notes
held or represented by such Noteholder; provided that
no vote shall be cast or counted at any meeting in
respect of any Note determined to be not outstanding.
The chairman of the meeting shall have no right to
vote other than by virtue of Notes held by such
chairman or instruments in writing as aforesaid duly
designating such chairman as the person to vote on
behalf of other Noteholders. At any meeting of
Noteholders duly called pursuant to Section 11.02 or
11.03 hereof, the presence of persons holding or
representing Notes in an aggregate principal amount
sufficient to take action on any business for the
transaction for which such meeting was called shall
constitute a quorum. Any meeting of Noteholders duly
called pursuant to Section 11.02 or 11.03 hereof may
be adjourned from time to time by the Holders of a
majority in aggregate principal amount of the Notes
present in person or by proxy at the meeting, whether
or not constituting a quorum, and the meeting may be
held as so adjourned without further notice.
Section 11.06 VOTING. The vote upon any resolution
submitted to any meeting of Noteholders shall be by
written ballots on which shall be subscribed the
signatures of the Holders of Notes or of their
representatives by proxy and the principal amount of
Notes held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors
of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file
with the secretary of the meeting their verified
written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of
such meeting of Noteholders shall be prepared by the
secretary of the meeting and there shall be attached
to said record the original reports of the inspectors
of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of
the facts setting forth a copy of the notice of the
meeting and showing that said notice was given as
provided in Section 11.02 hereof. The record shall
show the aggregate principal amount of the Notes
voting in favor of or against any resolution. The
record shall be signed and verified by the affidavits
of the permanent chairman and secretary of the
meeting and one of the duplicates shall be delivered
to the Company and the other to the Trustee to be
preserved by the Trustee and the Trustee shall have
the ballots taken at the meeting attached to such
duplicate. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
Section 11.07 RIGHTS OF TRUSTEE OR NOTEHOLDERS NOT
DELAYED. Nothing in this Article XI shall be deemed
or construed to authorize or permit, by reason of any
call of a meeting of Noteholders or any rights
expressly or impliedly conferred hereunder to make
such call, any hindrance or delay in the exercise of
any right or rights conferred upon or reserved to the
Trustee or to the Holders of Notes under any of the
provisions of this Indenture or of the Notes.
43
ARTICLE XII
CONSOLIDATION, MERGER, SALE, TRANSFER OR CONVEYANCE
Section 12.01 COMPANY MAY CONSOLIDATE, ETC. ONLY ON
CERTAIN TERMS. The Company shall not consolidate with
or merge into any other corporation or sell or
otherwise dispose of its properties as or
substantially as an entirety to any Person unless the
Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating
that such consolidation, merger, conveyance or
transfer and the supplemental indenture referred to
in clause (b) below comply with this Article XII and
that all conditions precedent herein provided for
have been complied with, and the corporation formed
by such consolidation or into which the Company is
merged or the Person which receives such properties
pursuant to such sale, transfer or other disposition
(a) shall be a corporation organized and existing
under the laws of the United States of America, any
state thereof or the District of Columbia; and (b)
shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in
form reasonably satisfactory to the Trustee, the due
and punctual payment of the principal of and premium
and interest on all of the Notes and the performance
of every covenant of this Indenture on the part of
the Company to be performed or observed.
Section 12.02 SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale,
transfer or other disposition of the properties of
the Company substantially as an entirety in
accordance with Section 12.01 hereof, the successor
corporation formed by such consolidation or into
which the Company is merged or the Person to which
such sale, transfer or other disposition is made
shall succeed to, and be substituted for and may
exercise every right and power of, the Company under
this Indenture with the same effect as if such
successor corporation or Person had been named as the
Company herein and the Company shall be released from
all obligations hereunder.
ARTICLE XIII
SUPPLEMENTAL INDENTURES
Section 13.01 SUPPLEMENTAL INDENTURES WITHOUT
CONSENT OF NOTEHOLDERS.
(a) The Company, when authorized by Board
Resolution, and the Trustee may from time to time
and at any time enter into an indenture or
indentures supplemental hereto for one or more of
the following purposes:
(1) to make such provision in regard to
matters or questions arising under this
Indenture as may be necessary or desirable,
and not inconsistent with this Indenture or
prejudicial to the interests of the Holders
in any material respect, for the purpose of
supplying any omission, curing any ambiguity,
or curing, correcting or supplementing any
defective or inconsistent provision;
(2) to change or eliminate any of the
provisions of this Indenture, provided that
any such change or elimination shall become
effective only when there is no Note
outstanding created prior to the execution of
such supplemental indenture which is entitled
to the benefit of such provision or such
change or elimination is applicable only to
Notes issued after the effective date of such
change or elimination;
44
(3) to establish the form of Notes of any
series as permitted by Section 2.01 hereof or
to establish or reflect any terms of any Note
of any series determined pursuant to Section
2.05 hereof;
(4) to evidence the succession of another
corporation to the Company as permitted
hereunder, and the assumption by any such
successor of the covenants of the Company
herein and in the Notes;
(5) to grant to or confer upon the Trustee
for the benefit of the Holders any additional
rights, remedies, powers or authority;
(6) to permit the Trustee to comply with any duties
imposed upon it by law;
(7) to specify further the duties and
responsibilities of, and to define further
the relationships among, the Trustee, any
Authenticating Agent and any paying agent,
and to evidence the succession of a successor
Trustee as permitted hereunder;
(8) to add to the covenants of the Company
for the benefit of the Holders of one or more
series of Notes, to add to the security for
all of the Notes, to surrender a right or
power conferred on the Company herein or to
add any Event of Default with respect to one
or more series of Notes; and
(9) to make any other change that is not
prejudicial to the Holders.
(b) The Trustee is hereby authorized to join with
the Company in the execution of any such supplemental
indenture, to make any further appropriate agreements
and stipulations which may be therein contained and to
accept the conveyance, transfer and assignment of any
property thereunder, but the Trustee shall not be
obligated to enter into any such supplemental indenture
which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
(c) Any supplemental indenture authorized by
this Section 13.01 may be executed by the Company and
the Trustee without the consent of the Holders of any
of the Notes at the time outstanding, notwithstanding
any of the provisions of Section 13.02 hereof.
Section 13.02 SUPPLEMENTAL INDENTURES WITH CONSENT
OF NOTEHOLDERS.
(a) With the consent (evidenced as provided in
Section 10.01 hereof) of the Holders of a majority in
aggregate principal amount of the Notes of all series
at the time outstanding, considered as one class, the
Company, when authorized by Board Resolution, and the
Trustee may from time to time and at any time enter
into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to, or
changing in any manner or eliminating any of the
provisions of, this Indenture or of any supplemental
indenture or of modifying or waiving in any manner
the rights of the Noteholders; provided, however,
that if there shall be Notes of more than one series
Outstanding hereunder and if a proposed supplemental
indenture shall directly affect the rights of the
Holders of Notes of one or more, but less than all,
of such series, then the consent only of the Holders
of a majority in aggregate principal amount of the
Outstanding Notes of all series so directly affected,
considered as one class, shall be required; provided
further that no such supplemental indenture shall:
45
(1) change the Stated Maturity of any Note, or
reduce the rate (or change the method of
calculation thereof) or extend the time of
payment of interest thereon, or reduce the
principal amount thereof or any premium
thereon, or change the coin or currency in
which the principal of any Note or any premium
or interest thereon is payable, or change the
date on which any Note may be redeemed or
adversely affect the rights of the Noteholders
to institute suit for the enforcement of any
payment of principal of or any premium or
interest on any Note, in each case without the
consent of the Holder of each Note so
affected; or
(2) modify this Section 13.02(a) or reduce the
aforesaid percentage of Notes, the Holders of
which are required to consent to any such
supplemental indenture or to reduce the
percentage of Notes, the Holders of which are
required to waive Events of Default, in each case,
without the consent of the Holders of all of
the Notes affected thereby then outstanding.
(b) Upon the request of the Company, accompanied
by a copy of the Board Resolution authorizing the
execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the
consent of Noteholders as aforesaid, the Trustee
shall join with the Company in the execution of such
supplemental indenture unless such supplemental
indenture affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise, in
which case the Trustee may in its discretion, but
shall not be obligated to, enter into such
supplemental indenture.
(c) A supplemental indenture which changes,
waives or eliminates any covenant or other provision
of this Indenture (or any supplemental indenture)
which has expressly been included solely for the
benefit of one or more series of Notes, or which
modifies the rights of the Holders of Notes of such
series with respect to such covenant or provision,
shall be deemed not to affect the rights under this
Indenture of the Holders of Notes of any other
series.
(d) It shall not be necessary for the consent of
the Holders of Notes under this Section 13.02 to
approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if
such consent shall approve the substance thereof.
(e) Promptly after the execution by the Company
and the Trustee of any supplemental indenture
pursuant to this Section 13.02, the Trustee shall
give notice in the manner provided in Section 16.10
hereof, setting forth in general terms the substance
of such supplemental indenture, to all Noteholders.
Any failure of the Trustee to give such notice or any
defect therein shall not, however, in any way impair
or affect the validity of any such supplemental
indenture.
Section 13.03 COMPLIANCE WITH TRUST INDENTURE ACT;
EFFECT OF SUPPLEMENTAL INDENTURES. Any supplemental
indenture executed pursuant to this Article XIII
shall comply with the TIA. Upon the execution of any
supplemental indenture pursuant to this Article XIII,
the Indenture shall be and be deemed to be modified
and amended in accordance therewith and the
respective rights, limitations of rights,
obligations, duties and immunities under this
Indenture of the Trustee, the Company and the
Noteholders shall thereafter be determined, exercised
and enforced hereunder subject in all respects to
such modifications and amendments, and all the terms
and conditions of any such supplemental indenture
shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all
purposes.
46
Section 13.04 NOTATION ON NOTES. Notes of any
series authenticated and delivered after the
execution of any supplemental indenture pursuant to
this Article XIII shallmay bear a notation in form
approved by the Trustee as to any matter provided for
in such supplemental indenture. If the Company shall
so determine, new Notes of any series so modified as
approved by the Trustee and the Board of Directors
with respect to any modification of this Indenture
contained in any such supplemental indenture may be
prepared and executed by the Company, authenticated
by the Trustee and delivered in exchange for the
Notes of such series then outstanding.
Section 13.05 EVIDENCE OF COMPLIANCE OF
SUPPLEMENTAL INDENTURE TO BE FURNISHED TRUSTEE. The
Trustee, subject to Sections 9.01 and 9.02 hereof,
shall receive an Officers' Certificate and an
Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant hereto
complies with the requirements of this Article XIII.
ARTICLE XIV
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 14.01 INDENTURE AND NOTES SOLELY CORPORATE
OBLIGATIONS. No recourse for the payment of the
principal of or any premium or interest on any Note,
or for any claim based thereon or otherwise in
respect thereof, and no recourse under or upon any
obligation, covenant or agreement of the Company,
contained in this Indenture, or in any supplemental
indenture, or in any Note, or because of the creation
of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer or
director, as such, past, present or future, of the
Company or of any successor corporation, either
directly or through the Company or any successor
corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being
expressly understood that all such liability is
hereby expressly waived and released as a condition
of, and as a consideration for, the execution of this
Indenture and the issuance of the Notes.
ARTICLE XV
SUBORDINATION OF NOTES
Section 15.01 NOTES SUBORDINATE TO SENIOR
INDEBTEDNESS. The Company, for itself, its successors
and assigns, covenants and agrees, and each Holder of
the Notes of each series, by its acceptance thereof,
likewise covenants and agrees, that the payment of
the principal of and premium, if any, and interest,
if any, on each and all of the Notes is hereby
expressly subordinated, to the extent and in the
manner set forth in this Article, in right of payment
to the prior payment in full of all Senior
Indebtedness.
Each Holder of the Notes of each series, by its
acceptance thereof, authorizes and directs the
Trustee on its behalf to take such action as may be
necessary or appropriate to effectuate the
subordination as provided in this Article, and
appoints the Trustee its attorney-in-fact for any and
all such purposes.
Section 15.02 PAYMENT OVER OF PROCEEDS OF NOTES. In
the event (a) of any insolvency or bankruptcy proceedings or
any receivership, liquidation, reorganization or other
47
similar proceedings in respect of the Company
or a substantial part of its property, or of any
proceedings for liquidation, dissolution or other
winding up of the Company, whether or not involving
insolvency or bankruptcy, or (b) subject to the
provisions of Section 15.03, that a default shall
have occurred with respect to the payment of
principal of or interest on or other monetary amounts
due and payable on any Senior Indebtedness, and such
default shall have continued beyond the period of
grace, if any, in respect thereof and shall not have
been cured or waived or shall not have ceased to
exist, or (c) that the principal of and accrued
interest on the Notes of any series shall have been
declared due and payable pursuant to Section 8.01 and
such declaration shall not have been rescinded and
annulled as provided in Section 8.01, then:
(1) the holders of all Senior Indebtedness shall
first be entitled to receive payment of the full
amount due thereon, or provision shall be made
for such payment in money or money's worth,
before the Holders of any of the Notes are
entitled to receive a payment on account of the
principal of or interest on the indebtedness
evidenced by the Notes, including, without
limitation, any payments made pursuant to
Articles III and IV;
(2) any payment by, or distribution of assets
of, the Company of any kind or character,
whether in cash, property or securities, to
which any Holder or the Trustee would be
entitled except for the provisions of this
Article, shall be paid or delivered by the
Person making such payment or distribution,
whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to
the holders of such Senior Indebtedness or their
representative or representatives or to the
trustee or trustees under any indenture under
which any instruments evidencing any of such
Senior Indebtedness may have been issued,
ratably according to the aggregate amounts
remaining unpaid on account of such Senior
Indebtedness held or represented by each, to the
extent necessary to make payment in full of all
Senior Indebtedness remaining unpaid after
giving effect to any concurrent payment or
distribution (or provision therefor) to the
holders of such Senior Indebtedness, before any
payment or distribution is made to the Holders
of the indebtedness evidenced by the Notes or to
the Trustee under this Indenture; and
(3) in the event that, notwithstanding the
foregoing, any payment by, or distribution of
assets of, the Company of any kind or character,
whether in cash, property or securities, in
respect of principal of or interest on the Notes
or in connection with any repurchase by the
Company of the Notes, shall be received by the
Trustee or any Holder before all Senior
Indebtedness is paid in full, or provision is
made for such payment in money or money's worth,
such payment or distribution in respect of
principal of or interest on the Notes or in
connection with any repurchase by the Company of
the Notes shall be paid over to the holders of
such Senior Indebtedness or their representative
or representatives or to the trustee or trustees
under any indenture under which any instruments
evidencing any such Senior Indebtedness may have
been issued, ratably as aforesaid, for
application to the payment of all Senior
Indebtedness remaining unpaid until all such
Senior Indebtedness shall have been paid in
full, after giving effect to any concurrent
payment or distribution (or provision therefor)
to the holders of such Senior Indebtedness.
Notwithstanding the foregoing, at any time after
the 123rd day following the date of deposit of cash
or U.S. Government Obligations pursuant to Section
5.01 (provided all conditions set out in such Section
shall have been satisfied), the funds so deposited
and any interest thereon will not be subject to any
rights of holders of Senior Indebtedness including,
without limitation, those arising under this Article
XV; provided that no event described in clauses (5)
and (6) of Section 8.01 with respect to the Company
has occurred during such 123-day period.
48
For purposes of this Article only, the words "cash,
property or securities" shall not be deemed to
include shares of stock of the Company as reorganized
or readjusted, or securities of the Company or any
other corporation provided for by a plan or
reorganization or readjustment which are subordinate
in right of payment to all Senior Indebtedness which
may at the time be outstanding to the same extent as,
or to a greater extent than, the Notes are so
subordinated as provided in this Article. The
consolidation of the Company with, or the merger of
the Company into, another corporation or the
liquidation or dissolution of the Company following
the conveyance or transfer of its property as an
entirety, or substantially as an entirety, to another
corporation upon the terms and conditions provided
for in Article XII hereof shall not be deemed a
dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 15.02
if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply
with the conditions stated in Article XII hereof.
Nothing in Section 15.01 or in this Section 15.02
shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 9.06.
Section 15.03 DISPUTES WITH HOLDERS OF CERTAIN
SENIOR INDEBTEDNESS. Any failure by the Company to
make any payment on or perform any other obligation
in respect of Senior Indebtedness, other than any
indebtedness incurred by the Company or assumed or
guaranteed, directly or indirectly, by the Company
for money borrowed (or any deferral, renewal,
extension or refunding thereof) or any other
obligation as to which the provisions of this Section
shall have been waived by the Company in the
instrument or instruments by which the Company
incurred, assumed, guaranteed or otherwise created
such indebtedness or obligation, shall not be deemed
a default under clause (b) of Section 15.02 if (i)
the Company shall be disputing its obligation to make
such payment or perform such obligation and (ii)
either (A) no final judgment relating to such dispute
shall have been issued against the Company which is
in full force and effect and is not subject to
further review, including a judgment that has become
final by reason of the expiration of the time within
which a party may seek further appeal or review, or
(B) in the event that a judgment that is subject to
further review or appeal has been issued, the Company
shall in good faith be prosecuting an appeal or other
proceeding for review and a stay or execution shall
have been obtained pending such appeal or review.
Section 15.04 SUBROGATION. Senior Indebtedness
shall not be deemed to have been paid in full unless
the holders thereof shall have received cash (or
securities or other property satisfactory to such
holders) in full payment of such Senior Indebtedness
then outstanding. Upon the payment in full of all
Senior Indebtedness, the Holders of the Notes shall
be subrogated to the rights of the holders of Senior
Indebtedness to receive any further payments or
distributions of cash, property or securities of the
Company applicable to the holders of the Senior
Indebtedness until all amounts owing on the Notes
shall be paid in full; and such payments or
distributions of cash, property or securities
received by the Holders of the Notes, by reason of
such subrogation, which otherwise would be paid or
distributed to the holders of such Senior
Indebtedness shall, as between the Company, its
creditors other than the holders of Senior
Indebtedness, and the Holders, be deemed to be a
payment by the Company to or on account of Senior
Indebtedness, it being understood that the provisions
of this Article are and are intended solely for the
purpose of defining the relative rights of the
Holders, on the one hand, and the holders of the
Senior Indebtedness, on the other hand.
Section 15.05 OBLIGATION OF COMPANY UNCONDITIONAL.
Nothing contained in this Article or elsewhere in
this Indenture or in the Notes is intended to or
shall impair, as among the Company, its creditors
other than the holders of Senior Indebtedness and the
Holders, the obligation of the Company, which is
absolute and unconditional, to pay to the Holders the
49
principal of and interest on the Notes as and when
the same shall become due and payable in accordance
with their terms, or is intended to or shall affect
the relative rights of the Holders and creditors of
the Company other than the holders of Senior
Indebtedness, nor shall anything herein or therein
prevent the Trustee or any Holder from exercising all
remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights,
if any, under this Article of the holders of Senior
Indebtedness in respect of cash, property or
securities of the Company received upon the exercise
of any such remedy.
Upon any payment or distribution of assets or
securities of the Company referred to in this
Article, the Trustee and the Holders
shall be entitled to rely upon any order or decree of
a court of competent jurisdiction in which such
dissolution, winding up, liquidation or
reorganization proceedings are pending for the
purpose of ascertaining the persons entitled to
participate in such distribution, the holders of the
Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon, and
all other facts pertinent thereto or to this Article.
Section 15.06 PRIORITY OF SENIOR INDEBTEDNESS UPON
MATURITY. Upon the maturity of the principal of any
Senior Indebtedness by lapse of time, acceleration or
otherwise, all matured principal of Senior
Indebtedness and interest and premium, if any,
thereon shall first be paid in full before any
payment of principal or premium or interest, if any,
is made upon the Notes or before any Notes can be
acquired by the Company or any sinking fund payment
is made with respect to the Notes (except that
required sinking fund payments may be reduced by
Notes acquired before such maturity of such Senior
Indebtedness).
Section 15.07 TRUSTEE AS HOLDER OF SENIOR
INDEBTEDNESS. The Trustee shall be entitled to all
rights set forth in this Article with respect to any
Senior Indebtedness at any time held by it, to the
same extent as any other holder of Senior
Indebtedness. Nothing in this Article shall deprive
the Trustee of any of its rights as such holder.
Section 15.08 NOTICE TO TRUSTEE TO EFFECTUATE
SUBORDINATION. Notwithstanding the provisions of this
Article or any other provision of the Indenture, the
Trustee shall not be charged with knowledge of the
existence of any facts which would prohibit the
making of any payment of moneys to or by the Trustee
unless and until the Trustee shall have received
written notice thereof from the Company, from a
Holder or from a holder of any Senior Indebtedness or
from any representative or representatives of such
holder and, prior to the receipt of any such written
notice, the Trustee shall be entitled, subject to
Section 9.01, in all respects to assume that no such
facts exist; provided, however, that, if prior to the
fifth Business Day preceding the date upon which by
the terms hereof any such moneys may become payable
for any purpose, or in the event of the execution of
an instrument pursuant to Sections 5.03 and 5.04
acknowledging satisfaction and discharge of this
Indenture, then if prior to the second Business Day
preceding the date of such execution, the Trustee
shall not have received with respect to such moneys
the notice provided for in this Section, then,
anything herein contained to the contrary
notwithstanding, the Trustee may, in its discretion,
receive such moneys and/or apply the same to the
purpose for which they were received, and shall not
be affected by any notice to the contrary, which may
be received by it on or after such date; provided,
however, that no such application shall affect the
obligations under this Article of the persons
receiving such moneys from the Trustee.
Section 15.09 MODIFICATION, EXTENSION, ETC., OF
SENIOR INDEBTEDNESS. The holders of Senior
Indebtedness may, without affecting in any manner the
subordination of the payment of the principal of and
premium, if any, and interest, if any, on the Notes,
at any time or
50
from time to time and in their absolute discretion, agree
with the Company to change the manner, place or terms of
payment, change or extend the time of payment of, or
renew or alter, any Senior Indebtedness, or amend or
supplement any instrument pursuant to which any Senior
Indebtedness is issued, or exercise or refrain from
exercising any other of their rights under the Senior
Indebtedness including, without limitation, the waiver
of default thereunder, all without notice to or assent
from the Holders or the Trustee.
Section 15.10 TRUSTEE HAS NO FIDUCIARY DUTY TO
HOLDERS OF SENIOR INDEBTEDNESS. With respect to the
holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its
covenants and objectives as are specifically set
forth in this Indenture, and no implied covenants or
obligations with respect to the holders of Senior
Indebtedness shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed
to owe any fiduciary duty to the holders of Senior
Indebtedness, and shall not be liable to any such
holders if it shall mistakenly pay over or deliver to
the Holders or the Company or any other Person, money
or assets to which any holders of Senior Indebtedness
shall be entitled by virtue of this Article or
otherwise.
Section 15.11 PAYING AGENTS OTHER THAN TRUSTEE. In
case at any time any Paying Agent other than the
Trustee shall have been appointed by the Company and
be then acting hereunder, the term "Trustee" as used
in this Article shall in such case (unless the
context shall otherwise require) be construed as
extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as
if such Paying Agent were named in this Article in
addition to or in place of the Trustee; provided,
however, that Sections 15.07, 15.08 and 15.10 shall
not apply to the Company if it acts as Paying Agent.
Section 15.12 RIGHTS OF HOLDERS OF SENIOR
INDEBTEDNESS NOT IMPAIRED. No right of any present or
future holder of Senior Indebtedness to enforce the
subordination herein shall at any time or in any way
be prejudiced or impaired by any act or failure to
act on the part of the Company or by any
noncompliance by the Company with the terms,
provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder
may have or be otherwise charged with.
Section 15.13 EFFECT OF SUBORDINATION PROVISIONS;
TERMINATION. Notwithstanding anything contained
herein to the contrary, other than as provided in the
immediately succeeding sentence, all the provisions
of this Indenture shall be subject to the provisions
of this Article, so far as the same may be applicable
thereto.
Notwithstanding anything contained herein to the
contrary, the provisions of this Article XV shall be
of no further effect, and the Notes shall no longer
be subordinated in right of payment to the prior
payment of Senior Indebtedness, if the Company shall
have delivered to the Trustee a notice to such
effect. Any such notice delivered by the Company
shall not be deemed to be a supplemental indenture
for purposes of Article XIII hereof.
ARTICLE XVI
MISCELLANEOUS PROVISIONS
Section 16.01 PROVISIONS BINDING ON COMPANY'S
SUCCESSORS. All the covenants, stipulations, promises
and agreements made by the Company in this Indenture
shall bind its successors and assigns whether so
expressed or not.
51
Section 16.02 OFFICIAL ACTS BY SUCCESSOR
CORPORATION. Any act or proceeding by any provision
of this Indenture authorized or required to be done
or performed by any board, committee or officer of
the Company shall and may be done and performed with
like force and effect by the like board, committee or
officer of any corporation that shall at the time be
the lawful successor of the Company.
Section 16.03 NOTICES. Any notice or demand which
by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by
the Noteholders on the Company may be given or served
by being deposited postage prepaid in a post office
letter box addressed (until another address is filed
by the Company with the Trustee) at the Principal
Executive Offices of the Company, to the attention of
the Secretary. Any notice, direction, request or
demand by any Noteholder or the Company to or upon
the Trustee shall be deemed to have been sufficiently
given or made, for all purposes, if given or made in
writing at the corporate trust office of the Trustee,
Attention: Corporate Trust Administration.
Section 16.04 GOVERNING LAW. This Indenture and
each Note shall be governed by and deemed to be a
contract under, and construed in accordance with, the
laws of the State of New York, and for all purposes
shall be construed in accordance with the laws of
said State without regard to conflicts of law
principles thereof.
Section 16.05 EVIDENCE OF COMPLIANCE WITH CONDITIONS
PRECEDENT.
(a) Upon any application or demand by the Company to
the Trustee to take any action under this Indenture, the
Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if
any, provided for in this Indenture (including any
covenants compliance with which constitutes a
condition precedent) relating to the proposed action
have been complied with and an Opinion of Counsel
stating that, in the opinion of such counsel, all
such conditions precedent have been complied with.
(b) Each certificate or opinion provided for in
this Indenture and delivered to the Trustee with
respect to compliance with a condition or covenant
provided for in this Indenture (other than the
certificates delivered pursuant to Section 6.06
hereof) shall include (1) a statement that each
Person making such certificate or opinion has read
such covenant or condition and the definitions
relating thereto; (2) a brief statement as to the
nature and scope of the examination or investigation
upon which the statements or opinions contained in
such certificate or opinion are based; (3) a
statement that, in the opinion of each such Person,
such Person has made such examination or
investigation as is necessary to enable such Person
to express an informed opinion as to whether or not
such covenant or condition has been complied with;
and (4) a statement as to whether or not, in the
opinion of each such Person, such condition or
covenant has been complied with.
(c) In any case where several matters are
required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the
opinion of, only one such Person, or that they be so
certified or covered by only one document, but one
such Person may certify or give an opinion with
respect to some matters and one or more other such
Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one
or several documents.
(d) Any certificate or opinion of an officer of
the Company may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or
representations by, counsel, unless
52
such officer knows, or in the exercise of reasonable
care should know, that the certificate or opinion or
representations with respect to the matters upon
which such certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel
delivered under the Indenture may be based, insofar
as it relates to factual matters, upon a certificate
or opinion of, or representations by, an officer or
officers of the Company stating that the information
with respect to such factual matters is in the
possession of the Company, unless such person knows,
or in the exercise of reasonable care should know,
that the certificate or opinion of representations
with respect to such matters are erroneous. Any
opinion of counsel delivered hereunder may contain
standard exceptions and qualifications reasonably
satisfactory to the Trustee.
(e) Any certificate, statement or opinion of any
officer of the Company, or of counsel, may be based,
insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an
independent public accountant or firm of accountants,
unless such officer or counsel, as the case may be,
knows that the certificate or opinions or
representations with respect to the accounting
matters upon which the certificate, statement or
opinion of such officer or counsel may be based as
aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are
erroneous. Any certificate or opinion of any firm of
independent public accountants filed with the Trustee
shall contain a statement that such firm is
independent.
(f) Where any Person is required to make, give or
execute two or more applications, requests, consents,
certificates, statements, opinions or other
instruments under this Indenture, they may, but need
not, be consolidated and form one instrument.
Section 16.06 BUSINESS DAYS. Unless otherwise
provided pursuant to Section 2.05(c) hereof, in any
case where the date of Maturity of the principal of
or any premium or interest on any Note or the date
fixed for redemption of any Note is not a Business
Day, then payment of such principal or any premium or
interest need not be made on such date but may be
made on the next succeeding Business Day with the
same force and effect as if made on the date of
Maturity or the date fixed for redemption, and, in
the case of timely payment thereof, no interest shall
accrue for the period from and after such Interest
Payment Date or the date on which the principal or
premium of the Note is required to be paid.
Section 16.07 TRUST INDENTURE ACT TO CONTROL. If
and to the extent that any provision of this
Indenture limits, qualifies or conflicts with the
duties imposed by the TIA, such required provision of
the TIA shall govern.
Section 16.08 TABLE OF CONTENTS, HEADINGS, ETC. The
table of contents and the titles and headings of the
articles and sections of this Indenture have been
inserted for convenience of reference only, are not
to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions
hereof.
Section 16.09 EXECUTION IN COUNTERPARTS. This
Indenture may be executed in any number of
counterparts, each of which shall be an original, but
such counterparts shall together constitute but one
and the same instrument.
Section 16.10 MANNER OF MAILING NOTICE TO
NOTEHOLDERS.
(a) Any notice or demand which by any provision
of this Indenture is required or permitted to be
given or served by the Trustee or the Company to or
on the Holders of Notes, as the case may be, shall be
given or served by first-class mail, postage prepaid,
addressed to the
53
Holders of such Notes at their last
addresses as the same appear on the register for the
Notes referred to in Section 2.06, and any such
notice shall be deemed to be given or served by being
deposited in a post office letter box in the form and
manner provided in this Section 16.10. In case by
reason of the suspension of regular mail service or
by reason of any other cause it shall be
impracticable to give notice to any Holder by mail,
then such notification to such Holder as shall be
made with the approval of the Trustee shall
constitute a sufficient notification for every
purpose hereunder.
(b) The Company shall also provide any notices
required under this Indenture by publication, but
only to the extent that such publication is required
by the TIA, the rules and regulations of the
Commission or any securities exchange upon which any
series of Notes is listed.
Section 16.11 APPROVAL BY TRUSTEE OF COUNSEL.
Wherever the Trustee is required to approve counsel
who is to furnish evidence of compliance with
conditions precedent in this Indenture, such approval
by the Trustee shall be deemed to have been given
upon the taking of any action by the Trustee pursuant
to and in accordance with the certificate or opinion
so furnished by such counsel.
54
IN WITNESS WHEREOF, GREAT PLAINS ENERGY INCORPORATED
has caused this Indenture to be signed and acknowledged
by its Vice President of Finance, Chief Financial
Officer, and Treasurer, and attested by its Senior
Vice President - Corporate Services and Secretary,
and ________________ has caused this Indenture to be
signed and acknowledged by its ________________, as
of the day and year first written above.
GREAT PLAINS ENERGY INCORPORATED
By
____________________________
Vice President -
Finance, Chief
Financial Officer and
Treasurer
ATTEST:
- ---------------------------------
Senior Vice President - Corporate
Services and Secretary
___________________,
AS TRUSTEE
By
___________________
55
FORM OF GUARANTEE AGREEMENT
EXHIBIT 4.G.
FORM OF GUARANTEE AGREEMENT
BETWEEN
GREAT PLAINS ENERGY INCORPORATED
AS GUARANTOR,
AND
----------------------------
AS GUARANTEE TRUSTEE,
DATED AS OF __________________
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TABLE OF CONTENTS
Page
----
ARTICLE ONE
Definitions
SECTION 101 Definitions 1
ARTICLE TWO
Trust Indenture Act
SECTION 201 Trust Indenture Act; Application 5
SECTION 202 List of Holders 5
SECTION 203 Reports by the Guarantee Trustee 5
SECTION 204 Periodic Reports to the Guarantee Trustee 5
SECTION 205 Evidence of Compliance with Conditions 6
Precedent
SECTION 206 Events of Default; Waiver 6
SECTION 207 Event of Default; Notice 6
SECTION 208 Conflicting Interests 6
ARTICLE THREE
Rights and Obligations of the Guarantee Trustee
SECTION 301 Certain Duties and Responsibilities 6
SECTION 302 Certain Rights of Guarantee Trustee 8
SECTION 303 Compensation; Indemnity 9
ARTICLE FOUR
Guarantee Trustee
SECTION 401 Eligibility 9
SECTION 402 Appointment, Removal, and Resignation of the 10
Guarantee Trustee
SECTION 403 Compensation; Indemnity 12
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ARTICLE FIVE
Guarantee
SECTION 501 Guarantee 12
SECTION 502 Waiver of Notice and Demand 12
SECTION 503 Obligations Not Affected 12
SECTION 504 Rights of Holders 13
SECTION 505 Guarantee of Payment 14
SECTION 506 Subrogation 14
SECTION 507 Independent Obligations 14
ARTICLE SIX
Covenants [and Subordination]
SECTION 601 Subordination 14
SECTION 602 Pari Passu Guarantees 14
SECTION 603 Consolidation, Merger, Sale, Transfer, or 15
Conveyance
ARTICLE SEVEN
Termination
SECTION 701 Termination 15
ARTICLE EIGHT
Miscellaneous
SECTION 801 Successors and Assigns 15
SECTION 802 Amendments 16
SECTION 803 Notices 16
SECTION 804 Benefit 17
SECTION 805 Interpretation 17
SECTION 806 Governing Law 17
SECTION 807 Counterparts 17
TESTIMONIUM 18
SIGNATURES 18
iii
GREAT PLAINS ENERGY CAPITAL TRUST __
CERTAIN SECTIONS OF THIS GUARANTEE AGREEMENT RELATING TO
SECTIONS 310 THROUGH 318 OF THE
TRUST INDENTURE ACT OF 1939:
TRUST INDENTURE GUARANTEE AGREEMENT
ACT SECTION ACT SECTION
- ---------------- ---------------
Section 310(a)(1) . . . . . . . . . . . . . . . . 401(a)
(a)(2) . . . . . . . . . . . . . . . . 401(a)
(a)(3) . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . 208, 401(c)
Section 311(a) . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . Not Applicable
Section 312(a) . . . . . . . . . . . . . . . . 202(a)
(b) . . . . . . . . . . . . . . . . 202(b)
(c) . . . . . . . . . . . . . . . . Not Applicable
Section 313(a) . . . . . . . . . . . . . . . . 203
(a)(4) . . . . . . . . . . . . . . . . 203
(b) . . . . . . . . . . . . . . . . 203
(c) . . . . . . . . . . . . . . . . 203
(d) . . . . . . . . . . . . . . . . 203
Section 314(a) . . . . . . . . . . . . . . . . 204
(b) . . . . . . . . . . . . . . . . 204
(c)(1) . . . . . . . . . . . . . . . . 205
(c)(2) . . . . . . . . . . . . . . . . 205
(c)(3) . . . . . . . . . . . . . . . . 205
(e) . . . . . . . . . . . . . . . . 101, 205
Section 315(a) . . . . . . . . . . . . . . . . 301(d), 302
(b) . . . . . . . . . . . . . . . . 207
(c) . . . . . . . . . . . . . . . . 301(c)
(d) . . . . . . . . . . . . . . . . 301(d)
(e) . . . . . . . . . . . . . . . . Not Applicable
Section 316(a) . . . . . . . . . . . . . . . . 101, 206, 504
(a)(1)(A) . . . . . . . . . . . . . . . . 504
(a)(1)(B) . . . . . . . . . . . . . . . . 504
(a)(2) . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . 503
(c) . . . . . . . . . . . . . . . . Not Applicable
Section 317(a)(17) . . . . . . . . . . . . . . . . Not Applicable
(a)(2) . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . Not Applicable
Section 318(a) . . . . . . . . . . . . . . . . 201
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Guarantee Agreement.
iv
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of __________________,
20__ is executed and delivered by GREAT PLAINS ENERGY
INCORPORATED, a Missouri corporation (the "Guarantor") having its
principal office at 1201 Walnut, Kansas City, Missouri 64106-
2124, and _______________________, a New York banking
corporation, as trustee (the "Guarantee Trustee"), for the
benefit of the holders (as defined herein) from time to time of
the Trust Preferred Securities (as defined herein) of GREAT
PLAINS ENERGY CAPITAL TRUST ___, a Delaware statutory business
trust (the "Trust").
WHEREAS, pursuant to an Amended and Restated Trust Agreement
(the "Trust Agreement"), dated as of _____________, 20__ among
GREAT PLAINS ENERGY INCORPORATED, as Depositor, ______________,
as Property Trustee (the "Property Trustee"), __________________,
as Delaware Trustee (the "Delaware Trustee") (collectively, the
"Trustees"), the Administrators named therein and the Holders
from time to time of preferred undivided beneficial ownership
interests in the assets of the Trust, the Trust is issuing up to
$____________ aggregate Liquidation Amount (as defined herein) of
its ______% Trust Preferred Securities, Liquidation Amount $_____
per Trust Preferred Security (the "Trust Preferred Securities"),
representing preferred undivided beneficial ownership interests
in the assets of the Trust and having the terms set forth in the
Trust Agreement;
WHEREAS, the Trust Preferred Securities will be issued by
the Trust and the proceeds thereof, together with the proceeds
from the issuance by the Trust of the Trust Common Securities (as
defined herein), will be used to purchase the _______%
[Subordinated] Deferrable Interest Debentures Series __ due
_____________ (the "[Subordinated] Debentures") of the Guarantor
which will be deposited with the Property Trustee under the Trust
Agreement, as trust assets; and
WHEREAS, as incentive for the Holders to purchase the Trust
Preferred Securities, the Guarantor desires irrevocably and
unconditionally to agree, to the extent set forth herein, to pay
to the Holders of the Trust Preferred Securities the Guarantee
Payments (as defined herein) and to make certain other payments
on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase of the
Trust Preferred Securities by each Holder, which purchase the
Guarantor hereby acknowledges shall benefit the Guarantor, and
intending to be legally bound hereby, the Guarantor executes and
delivers this Guarantee Agreement for the benefit of the Holders
from time to time of the Trust Preferred Securities.
ARTICLE I
DEFINITIONS
SECTION 101. DEFINITIONS.
As used in this Guarantee Agreement, the terms set forth
below shall, unless the context otherwise requires, have the
following meanings. Capitalized terms used but not otherwise
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defined herein shall have the meanings assigned to such terms in
the Trust Agreement as in effect on the date hereof.
"AFFILIATE" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person. For
the purposes of this definition, "CONTROL" when used with respect
to any specified Person means the power to direct the management
and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or
otherwise; and the terms "CONTROLLING" and "CONTROLLED" have
meanings correlative to the foregoing.
"DISTRIBUTIONS" means preferential cumulative cash
distributions accumulating from ________, 20__ and payable
quarterly in arrears on _________, ________, ________ and
_________ of each year, commencing ________, 20__, at an annual
rate of ____% of the Liquidation Amount.
"EVENT OF DEFAULT" means (i) a default by the Guarantor in
any of its payment obligations under this Guarantee Agreement, or
(ii) a default by the Guarantor in any other obligation hereunder
that remains unremedied for 30 days.
"GUARANTEE AGREEMENT" means this Guarantee Agreement, as
modified, amended or supplemented from time to time.
"GUARANTEE PAYMENTS" means the following payments or
distributions, without duplication, with respect to the Trust
Preferred Securities, to the extent not paid or made by or on
behalf of the Trust: (i) any accumulated and unpaid Distributions
(as defined in the Trust Agreement) required to be paid on the
Trust Preferred Securities, to the extent the Trust shall have
funds on hand available therefor at such time, (ii) the
Redemption Price, with respect to the Trust Preferred Securities
called for redemption by the Trust to the extent that the Trust
shall have funds on hand available therefor at such time, and
(iii) upon a voluntary or involuntary termination, winding-up or
liquidation of the Trust, unless the [Subordinated] Debentures
are distributed to the Holders, the lesser of (a) the aggregate
of the Liquidation Amount and all accumulated and unpaid
Distributions to the date of payment to the extent the Trust
shall have funds on hand available to make such payment at such
time and (b) the amount of assets of the Trust remaining
available for distribution to Holders on liquidation of the Trust
(in either case, the "Liquidation Distribution").
"GUARANTEE TRUSTEE" means ____________________, until a
Successor Guarantee Trustee has been appointed and has accepted
such appointment pursuant to the terms of this Guarantee
Agreement and thereafter means each such Successor Guarantee
Trustee.
"GUARANTOR" shall have the meaning specified in the first
paragraph of this Guarantee Agreement.
"HOLDER" means any holder, as registered on the books and
records of the Trust, of any Trust Preferred Securities;
provided, however, that, in determining whether the holders of
the requisite percentage of Trust Preferred Securities have given
any request, notice, consent or waiver hereunder, "Holder" shall
not include the Guarantor, the Guarantee Trustee, or any
Affiliate of the Guarantor or the Guarantee Trustee.
2
"INDENTURE" means the Indenture (For Subordinated Debt
Securities) dated as of ______________, 20__ between Great Plains
Energy Incorporated and ______________, as trustee, as may be
modified, amended or supplemented from time to time.
"LIKE AMOUNT" means (a) with respect to a redemption of
Trust Securities, Trust Securities having a Liquidation Amount
equal to that portion of the principal amount of [Subordinated]
Debentures to be contemporaneously redeemed in accordance with
the Indenture, allocated to the Trust Common Securities and to
the Trust Preferred Securities based upon the relative
Liquidation Amounts of such classes and (b) with respect to a
distribution of [Subordinated] Debentures to Holders of Trust
Securities in connection with a dissolution or liquidation of the
Trust, [Subordinated] Debentures having a principal amount equal
to the Liquidation Amount of the Trust Securities of the Holder
to whom such [Subordinated] Debentures are distributed.
"LIQUIDATION AMOUNT" means the stated amount of $_____ per
Trust Preferred Security.
"MAJORITY IN LIQUIDATION AMOUNT OF THE TRUST PREFERRED
SECURITIES" means, except as provided by the Trust Indenture Act,
Trust Preferred Securities representing more than 50% of the
aggregate Liquidation Amount of all then outstanding Trust
Preferred Securities issued by the Trust.
"OFFICERS' CERTIFICATE" means a certificate signed by the
Chairman of the Board, President, any Vice President, the
Treasurer or any other duly authorized officer of the Guarantor,
and delivered to the Guarantee Trustee. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant
provided for in this Guarantee Agreement (other than pursuant to
Section 204) shall include:
(a) a statement that each Person signing such certificate
or opinion has read such covenant or condition and the
definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such Person,
such Person has made such examination or investigation as is
necessary to enable such Person to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of each such
Person, such condition or covenant has been complied with.
"PERSON" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association,
joint stock company, limited liability company, trust,
unincorporated association, or government or any agency or
political subdivision thereof, or any other entity of whatever
nature.
3
"REDEMPTION DATE" means, with respect to any Trust Preferred
Security to be redeemed, the date fixed for such redemption by or
pursuant to the Trust Agreement; provided that each
[Subordinated] Debenture Redemption Date and the stated maturity
of the [Subordinated] Debentures shall be a Redemption Date for a
Like Amount of Trust Preferred Securities.
"REDEMPTION PRICE" shall have the meaning specified in the
Trust Agreement.
"RESPONSIBLE OFFICER" means, when used with respect to the
Guarantee Trustee, any officer assigned to the Corporate Trust
Office, including any managing director, vice president,
assistant vice president, assistant treasurer, assistant
secretary, Senior Trust Officer, Trust Officer or any other
officer of the Guarantee Trustee customarily performing functions
similar to those performed by any of the above designated
officers and having direct responsibility for the administration
of this Guarantee Agreement, and also, with respect to a
particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity
with the particular subject.
"SENIOR INDEBTEDNESS" shall have the meaning specified in
the Indenture.
"SUCCESSOR GUARANTEE TRUSTEE" means a successor Guarantee
Trustee possessing the qualifications to act as Guarantee Trustee
under Section 401.
"TRUST" shall have the meaning specified in the first
paragraph of this Guarantee Agreement.
"TRUST AGREEMENT" means the Amended and Restated Trust
Agreement, dated ___________, 20__ entered among Great Plains
Energy Incorporated, as Depositor, _________________, as Delaware
Trustee, ____________________, as Property Trustee, and the
Administrators named therein.
"TRUST COMMON SECURITIES" means the securities representing
common undivided beneficial interests in the assets of the Trust.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939
as in force and effect as of the date of execution of this
Guarantee Agreement; provided, however, that in the event the
Trust Indenture Act of 1939 is succeeded by another statute or is
amended after such date, "Trust Indenture Act" shall mean such
successor statute or the Trust Indenture Act of 1939, as so
amended, to the extent such successor statute or amendment is
applicable to this Guarantee Agreement or to the actions of the
Guarantor or the Property Trustee under or pursuant to this
Guarantee Agreement.
"TRUST PREFERRED SECURITIES" shall have the meaning
specified in the first recital of this Guarantee Agreement.
"TRUST SECURITIES" means the Trust Common Securities and the
Trust Preferred Securities.
4
ARTICLE II
TRUST INDENTURE ACT
SECTION 201. TRUST INDENTURE ACT; APPLICATION. This
Guarantee Agreement is intended to be in conformity with the
provisions of the Trust Indenture Act that would be required to
be part of this Guarantee Agreement were this Guarantee Agreement
to be qualified under the Trust Indenture Act and shall, to the
extent applicable, and unless otherwise provided herein, be
governed by such provisions. If and to the extent that any
provision of this Guarantee Agreement limits, qualifies or
conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall
control. If any provision of this Guarantee Agreement modifies or
excludes any provision of the Trust Indenture Act that may be so
modified or excluded, the latter provision shall be deemed to
apply to this Guarantee Agreement as so modified or excluded, as
the case may be.
SECTION 202. LIST OF HOLDERS.
(a) The Guarantor will furnish or cause to be furnished to
the Guarantee Trustee a list of holders at the following times:
(i) semiannually, not more than 15 days after _________
and ____________ in each year, a list, in such form as
the Guarantee Trustee may reasonably require, of the
names and addresses of the Holders as of such ________ or
_________, as applicable; and
(ii) at such other times as the Guarantee Trustee may
request in writing, within 30 days after the receipt by
the Guarantor of any such request, a list of similar form
and content as of a date not more than 15 days prior to
the time such list is furnished.
(b) The Guarantee Trustee shall comply with the
requirements of Section 312(b) of the Trust Indenture Act.
SECTION 203. REPORTS BY THE GUARANTEE TRUSTEE. Not later
than 60 days after ___________ of each year, commencing
___________, 20__, the Guarantee Trustee shall provide to the
Holders such reports, if any, as are required by Section 313(a)
of the Trust Indenture Act in the form and in the manner provided
by Section 313 of the Trust Indenture Act. The Guarantee Trustee
shall also comply with the requirements of Section 313(d) of the
Trust Indenture Act.
SECTION 204. PERIODIC REPORTS TO THE GUARANTEE TRUSTEE. The
Guarantor shall provide to the Guarantee Trustee, and the Holders
such documents, reports and information, if any, as required by
Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314(a)(4) of the Trust Indenture
Act, in the form, in the manner and at the times required by
Section 314 of the Trust Indenture Act.
5
SECTION 205. EVIDENCE OF COMPLIANCE WITH CONDITIONS
PRECEDENT. The Guarantor shall provide to the Guarantee Trustee
such evidence of compliance with such conditions precedent, if
any, provided for in this Guarantee Agreement that relate to any
of the matters set forth in Section 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an
officer pursuant to Section 314(c)(1) may be given in the form of
an Officers' Certificate.
SECTION 206. EVENTS OF DEFAULT; WAIVER. The Holders of a
Majority in Liquidation Amount of the Trust Preferred Securities
may, on behalf of the Holders, waive any past Event of Default
and its consequences. Upon such waiver, any such Event of Default
shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured, for every purpose of this
Guarantee Agreement, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any
right consequent therefrom.
SECTION 207. EVENT OF DEFAULT; NOTICE. The Guarantee
Trustee shall give notice to the Holders of any default hereunder
of which it has knowledge (within the meaning of Section 302(h)
hereof) in the manner and to the extent required to do so by the
Trust Indenture Act, unless such default shall have been cured or
waived. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time, or both,
would become, an Event of Default.
SECTION 208. CONFLICTING INTERESTS. The Trust Agreement,
relating to the Trust, and the Guarantee Agreement shall be
deemed to be specifically described in this Guarantee Agreement
for the purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.
ARTICLE III
RIGHTS AND OBLIGATIONS OF THE GUARANTEE TRUSTEE
SECTION 301. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The Guarantee Trustee shall have and be subject to all
the duties and responsibilities specified with respect to an
indenture trustee in the Trust Indenture Act, and no implied
covenants or obligations shall be read into this Guarantee
Agreement against the Guarantee Trustee. For purposes of Sections
315(a) and 315(c) of the Trust Indenture Act, the term
"default" is hereby defined as an Event of Default which has
occurred and is continuing.
(b) This Guarantee Agreement shall be held by the Guarantee
Trustee for the benefit of the Holders, and the Guarantee Trustee
shall not transfer this Guarantee Agreement to any person except
a Holder exercising his or her rights pursuant to Section 504(iv)
or to a Successor Guarantee Trustee on acceptance by such
Successor Guarantee Trustee of its appointment to act as
Successor Guarantee Trustee hereunder. The right, title and
interest of the Guarantee Trustee, as such, hereunder shall
automatically vest in any Successor Guarantee Trustee, upon
acceptance by such Successor Guarantee Trustee of its
appointment hereunder, and such vesting and cessation of title
shall be effective whether or not conveyancing documents have
been executed and delivered pursuant to the appointment of such
Successor Guarantee Trustee.
(c) The Guarantee Trustee, prior to the occurrence of an
Event of Default and after the curing or waiving of all Events of
Default that may have occurred, undertakes to perform such
6
duties and only such duties as are specifically set forth in this
Guarantee Agreement. In case an Event of Default of which a
Responsible Officer of the Guarantee Trustee has actual knowledge
has occurred (which has not been cured or waived), the Guarantee
Trustee shall exercise such of the rights and powers vested in it
by this Guarantee Agreement, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or
use under the circumstances in the conduct of such person's
own affairs.
(d) No provision of this Guarantee Agreement shall be
construed to relieve the Guarantee Trustee from liability for its
own negligent action, its own negligent failure to act or its own
willful misconduct, except that prior to the occurrence of an
Event of Default and after the curing or waiving of all Events of
Default which may have occurred
(i) the duties and obligations of the Guarantee Trustee
shall be determined solely by the express provisions of
this Guarantee Agreement, and the Guarantee Trustee shall
not be liable except for the performance of such duties
and obligations as are specifically set forth in this
Guarantee Agreement, and no implied covenants or
obligations shall be read into this Guarantee Agreement
against the Guarantee Trustee; and
(ii) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee Trustee may conclusively
rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Guarantee
Trustee and conforming to the requirements of this
Guarantee Agreement; but, in the case of any such
certificates or opinions that by any provision hereof are
specifically required to be furnished to the Guarantee
Trustee, the Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they conform
to the requirements of this Guarantee Agreement.
(e) The Guarantee Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer or
Officers of the Guarantee Trustee, unless it shall be proven that
the Guarantee Trustee was negligent in ascertaining the pertinent
facts.
(f) The Guarantee Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith,
in accordance with the direction of the Holders pursuant to
Section 504(iii), relating to the time, method and place of
conducting any proceeding for any remedy available to the
Guarantee Trustee, or exercising any trust or power conferred
upon the Guarantee Trustee, under this Guarantee Agreement.
(g) No provision of this Guarantee Agreement shall require
the Guarantee Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights
or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity, satisfactory to
the Guarantee Trustee in its reasonable judgment, against such
risk or liability is not reasonably assured to it.
(h) Notwithstanding anything contained in this Guarantee
Agreement to the contrary, the duties and responsibilities of the
Guarantee Trustee under this Guarantee Agreement shall be subject
to the protections, exculpations and limitations on liability
afforded to the Guarantee Trustee under the provisions of the
Trust Indenture Act, including those provisions of such Act
deemed by such Act to be included herein.
7
(i) Whether or not therein expressly so provided, every
provision of this Guarantee Agreement relating to the conduct or
affecting the liability of or affording protection to the
Guarantee Trustee shall be subject to the provisions of this
Section.
SECTION 302. CERTAIN RIGHTS OF GUARANTEE TRUSTEE. Subject to
the provisions of Section 301 and to the applicable provisions of
the Trust Indenture Act:
(a) the Guarantee Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the Guarantor mentioned
herein shall be sufficiently evidenced by an Officer's
Certificate, or as otherwise expressly provided herein, and any
resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Guarantee
Agreement the Guarantee Trustee shall deem it desirable that a
matter be proved or established prior to taking, suffering or
omitting any action hereunder, the Guarantee Trustee (unless
other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officer's
Certificate,
(d) the Guarantee Trustee may consult with counsel and the
advice or written opinion of such counsel with respect to legal
matters shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Guarantee Agreement at the request or direction of any Holder
pursuant to this Guarantee Agreement, unless such Holder shall
have offered to the Guarantee Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might
be incurred by it in compliance with such request or direction;
(f) the Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the
Guarantee Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see
fit, and, if the Guarantee Trustee shall determine to make such
further inquiry or investigation, it shall (subject to applicable
legal requirements) be entitled to examine, during normal
business hours, the books, records and premises of the Guarantor,
personally or by agent or attorney;
(g) the Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly
or by or through agents or attorneys and the Guarantee Trustee
shall not be responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care by it
hereunder; and
(h) the Guarantee Trustee shall not be charged with
knowledge of any default or Event of Default unless either (1) a
Responsible Officer of the Guarantee Trustee shall have actual
knowledge of the default or Event of Default or (2) written
notice of such default or Event of
8
Default (which shall state that such notice is a "Notice of
Default" or a "Notice of an Event of Default" hereunder, as the
case may be) shall have been given to the Guarantee Trustee by
the Guarantor, any other obligor on Trust Preferred Securities or
by any Holder of Trust Preferred Securities.
SECTION 303. COMPENSATION; INDEMNITY. The Guarantor shall
(a) pay to the Guarantee Trustee from time to time
reasonable compensation for all services rendered by the
Guarantee Trustee hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of
a trustee of an express trust);
(b) except as otherwise expressly provided herein, reimburse
the Guarantee Trustee upon request for all reasonable expenses,
disbursements and advances reasonably incurred or made by the
Guarantee Trustee in accordance with any provision of this
Guarantee Agreement, including the costs of collection (including
the reasonable compensation and the expenses and disbursements of
its agents and counsel), except to the extent that any such
expense, disbursement or advance may be attributable to its
negligence, willful misconduct or bad faith; and
(c) indemnify and hold harmless the Guarantee Trustee from
and against any and all losses, demands, claims, liabilities,
causes of action or expenses (including reasonable attorney's
fees and expenses) incurred by it arising out of or in connection
with the acceptance or administration of the trust or trusts
hereunder or the performance of its duties hereunder (including
the reasonable costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder), except to the extent
any such loss, demand, claim, liability, cause of action or
expense may be attributable to its negligence, willful
misconduct or bad faith, and assume the defense of Guarantee
Trustee with counsel acceptable to the Guarantee Trustee, unless
the Guarantee Trustee shall have been advised by counsel that
there may be one or more legal defenses available to it which are
different from or additional to those available to the Guarantor.
The provisions of this Section shall survive termination of this
Guarantee Agreement.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 401. ELIGIBILITY.
(a) There shall at all times be a Guarantee Trustee which
shall:
(i) not be an Affiliate of the Guarantor;
(ii) be a corporation
(1) organized and doing business under the laws of
the United States, any State or Territory thereof or
the District of Columbia, authorized under such laws
to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 and
subject to supervision or examination by Federal or
State authority, or
9
(2) if and to the extent permitted by the
Commission by rule, regulation or order upon
application, a corporation or other Person organized
and doing business under the laws of a foreign
government, authorized under such laws to exercise
corporate trust powers, having a combined capital and
surplus of at least $50,000,000 or the Dollar
equivalent of the applicable foreign currency and
subject to supervision or examination by authority of
such foreign government or a political subdivision
thereof substantially equivalent to supervision or
examination applicable to United States institutional
trustees, and, in either case, qualified and eligible
under this Article IV and the Trust Indenture Act. If
such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements
of such supervising or examining authority, then for
the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most
recent report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be
eligible to so act under Section 401(a), the Guarantee Trustee
shall immediately resign in the manner and with the effect set
out in Section 402.
(c) If the Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of
the Trust Indenture Act, the Guarantee Trustee and Guarantor
shall in all respects comply with the provisions of Section
310(b) of the Trust Indenture Act, subject to the penultimate
paragraph thereof.
SECTION 402. APPOINTMENT, REMOVAL AND RESIGNATION OF THE
GUARANTEE TRUSTEE.
(a) No resignation or removal of the Guarantee Trustee and
no appointment of a Successor Guarantee Trustee pursuant to this
Article shall become effective until the acceptance of
appointment by the Successor Guarantee Trustee by written
instrument executed by the Successor Guarantee Trustee and
delivered to the Holders and the Guarantee Trustee.
(b) Subject to the immediately preceding paragraph, a
Guarantee Trustee may resign at any time by giving written notice
thereof to the Guarantor and the Holders. If the instrument of
acceptance by the Successor Guarantee Trustee shall not have been
delivered to the Guarantee Trustee within 60 days after the
giving of such notice of resignation, the Guarantee Trustee
may petition, at the expense of the Guarantor, any court of
competent jurisdiction for the appointment of a Successor
Guarantee Trustee.
(c) The Guarantee Trustee may be removed at any time by Act
(within the meaning of Section 608 of the Trust Agreement) of the
Holders of at least a Majority in Liquidation Amount of the Trust
Preferred Securities, delivered to the Guarantee Trustee.
(d) If at any time:
(i) the Guarantee Trustee shall fail to comply with
Section 401(c) after written request therefor by the
Guarantor or by any Holder who has been a bona fide
Holder for at least six months, or
10
(ii) the Guarantee Trustee shall cease to be eligible
under Section 401(a) and shall fail to resign after
written request therefor by the Guarantor or by any such
Holder, or
(iii) the Guarantee Trustee shall become incapable of
acting or shall be adjudged a bankrupt or insolvent or a
receiver of the Guarantee Trustee or of its property
shall be appointed or any public officer shall take
charge or control of the Guarantee Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation then, in any such case, the
Guarantor may remove the Guarantee Trustee
(e) If the Guarantee Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the
office of Guarantee Trustee for any cause, the Guarantor, by a
Board Resolution, shall promptly appoint a Successor Guarantee
Trustee and shall comply withthe applicable requirements of
Section 403. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a Successor
Guarantee Trustee shall be appointed by Act of the Holders of not
less than a Majority in Liquidation Amount of the Trust Preferred
Securities delivered to the Guarantor and the retiring Guarantee
Trustee, the Successor Guarantee Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 403, become the
Successor Guarantee Trustee and supersede the Successor Guarantee
Trustee appointed by the Guarantor. If no Successor Guarantee
Trustee shall have been so appointed by the Guarantor or the
Holders and accepted appointment in the manner required by
Section 403, any Holder who has been a bona fide Holder of a
Trust Preferred Security for at least six months may, on behalf
of itself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a Successor
Guarantee Trustee.
(f) So long as no event which is, or after notice or lapse
of time, or both, would become, an Event of Default shall have
occurred and be continuing, and except with respect to a
Guarantee Trustee appointed by Act of the Holders of a Majority
in Liquidation Amount of the Outstanding Trust Preferred
Securities pursuant to subsection (e) of this Section, if the
Guarantor shall have delivered to the Guarantee Trustee (i) a
Board Resolution appointing a Successor Guarantee Trustee,
effective as of a date specified therein, and (ii) an instrument
of acceptance of such appointment, effective as of such date, by
such Successor Guarantee Trustee in accordance with Section
403, the Guarantee Trustee shall be deemed to have resigned as
contemplated in subsection (b) of this Section, the Successor
Guarantee Trustee shall be deemed to have been appointed by the
Guarantor pursuant to subsection (e) of this Section and such
appointment shall be deemed to have been accepted as contemplated
inSection 403, all as of such date, and all other provisions of
this Section and Section 403 shall be applicable to such
resignation, appointment and acceptance except to the extent
inconsistent with this subsection (f).
(g) The Guarantor or, should the Guarantor fail so to act
promptly, the Successor Guarantee Trustee, at the expense of the
Guarantor, shall give notice of each resignation and each removal
of the Guarantee Trustee and each appointment of a Successor
Guarantee Trustee by mailing written notice of such event by
first-class mail, postage prepaid, to all Holders as their names
and addresses appear in the Securities Register. Each notice
shall include the name of the Successor Guarantee Trustee and the
address of its Corporate Trust Office.
SECTION 403. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR
GUARANTEE TRUSTEE.
11
(a) Every Successor Guarantee Trustee appointed hereunder
shall execute, acknowledge and deliver to the Guarantor and to
the retiring Guarantee Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the
retiring Guarantee Trustee shall become effective and such
Successor Guarantee Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Guarantee Trustee; but, on the
request of the Guarantor or the Successor Guarantee Trustee, such
retiring Guarantee Trustee shall, upon payment of all sums owed
to it, execute and deliver an instrument transferring to such
Successor Guarantee Trustee all the rights, powers and trusts of
the retiring Guarantee Trustee and shall duly assign, transfer
and deliver to such Successor Guarantee Trustee all property and
money held by such retiring Guarantee Trustee hereunder.
(b) Upon request of any such Successor Guarantee Trustee,
the Guarantor shall execute any instruments which fully vest in
and confirm to such Successor Guarantee Trustee all such rights,
powers and trusts referred to in subsection (a) of this Section.
(c) No Successor Guarantee Trustee shall accept its
appointment unless at the time of such acceptance such Successor
Guarantee Trustee shall be qualified and eligible under this
Article.
ARTICLE V
GUARANTEE
SECTION 501. GUARANTEE. The Guarantor irrevocably and
unconditionally agrees to pay in full to the Holders the
Guarantee Payments (without duplication of amounts theretofore
paid by or on behalf of the Trust), as and when due, regardless
of any defense, right of set-off or counterclaim which the Trust
may have or assert, except the defense of payment. The
Guarantor's obligation to make a Guarantee Payment may be
satisfied by direct payment of the required amounts by the
Guarantor to the Holders or by causing the Trust to pay such
amounts to the Holders. The Guarantor shall give prompt written
notice to the Guarantee Trustee in the event it makes any direct
payment hereunder.
SECTION 502. WAIVER OF NOTICE AND DEMAND. The Guarantor
hereby waives notice of acceptance of the Guarantee Agreement and
of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first
against the Guarantee Trustee, the Trust or any other Person
before proceeding against the Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
SECTION 503. OBLIGATIONS NOT AFFECTED. The obligations,
covenants, agreements and duties of the Guarantor under this
Guarantee Agreement shall in no way be affected or impaired by
reason of the happening from time to time of any of the
following:
(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Trust of any express or
implied agreement, covenant, term or condition relating to the
Trust Preferred Securities to be performed or observed by the
Trust;
(b) the extension of time for the payment by the Trust of
all or any portion of the Distributions (other than an extension
of time for payment of Distributions that results from the
extension of any interest payment period on the [Subordinated]
Debentures as so provided in the Indenture), Redemption Price,
Liquidation Distribution or any other sums payable under the
12
terms of the Trust Preferred Securities or the extension of time
for the performance of any other obligation under, arising out
of, or in connection with, the Trust Preferred Securities;
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to
the terms of the Trust Preferred Securities, or any action on the
part of the Trust granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of debt of, or other
similar proceedings affecting, the Trust or any of the assets of
the Trust;
(e) any invalidity of, or defect or deficiency in, the Trust
Preferred Securities;
(f) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a
guarantor (other than payment of the underlying obligation), it
being the intent of this Section 503 that the obligations of the
Guarantor hereunder shall beabsolute and unconditional under any
and all circumstances.
There shall be no obligation of the Holders to give notice
to, or obtain the consent of, the Guarantor with respect to the
happening of any of the foregoing.
SECTION 504. RIGHTS OF HOLDERS. The Guarantor expressly
acknowledges that: (i) this Guarantee Agreement will be deposited
with the Guarantee Trustee to be held for the benefit of the
Holders; (ii) the Guarantee Trustee has the right to enforce this
Guarantee Agreement on behalf of the Holders; (iii) the Holders
of a Majority in Liquidation Amount of the Trust Preferred
Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the
Guarantee Trustee in respect of this Guarantee Agreement or
exercising any trust or power conferred upon the Guarantee
Trustee under this Guarantee Agreement, provided, however, that,
subject to Section 301, the Guarantee Trustee shall have the
right to decline to follow any such direction if the Guarantee
Trustee being advised by counsel determines that the action so
directed may not lawfully be taken, or if the Guarantee Trustee
in good faith shall, by a Responsible Officer or Officers of the
Guarantee Trustee, determine that the proceedings so directed
would be illegal or involve it in personal liability or be unduly
prejudicial to the rights of the Holders not party to such
direction, and provided further that nothing in this Guarantee
Agreement shall impair the right of the Guarantee Trustee to take
any action deemed proper by the Guarantee Trustee and which is
not inconsistent with such direction; and (iv) any Holder may
institute a legal proceeding directly against the Guarantor to
enforce its rights under this Guarantee Agreement, without first
instituting a legal proceeding against the Guarantee Trustee, the
Trust or any other Person.
SECTION 505. GUARANTEE OF PAYMENT. This Guarantee Agreement
creates a guarantee of payment and not of collection. This
Guarantee Agreement will not be discharged except by payment of
the Guarantee Payments in full (without duplication of amounts
theretofore paid by the Trust) or upon the distribution of
[Subordinated] Debentures to Holders as provided in the Trust
Agreement.
13
SECTION 506. SUBROGATION. The Guarantor shall be subrogated
to all rights (if any) of the Holders against the Trust in
respect of any amounts paid to the Holders by the Guarantor under
this Guarantee Agreement; provided, however, that the Guarantor
shall not (except to the extent required by mandatory provisions
of law) be entitled to enforce or exercise any rights which it
may acquire by way of subrogation or any indemnity, reimbursement
or other agreement, in all cases as a result of payment under
this Guarantee Agreement, if at the time of any such payment, any
amounts are due and unpaid under this Guarantee Agreement. If any
amount shall be paid to the Guarantor in violation of the
preceding sentence, the Guarantor agrees to hold such amount in
trust for the Holders and to pay over such amount to the Holders.
SECTION 507. INDEPENDENT OBLIGATIONS. The Guarantor
acknowledges that its obligations hereunder are independent of
the obligations of the Trust with respect to the Trust Preferred
Securities and that the Guarantor shall be liable as principal
and as debtor hereunder to make Guarantee Payments pursuant to
the terms of this Guarantee Agreement notwithstanding the
occurrence of any event referred to in subsections (a) through
(g), inclusive, of Section 503 hereof.
ARTICLE VI
COVENANTS [AND SUBORDINATION]
SECTION 601. SUBORDINATION.
This Guarantee Agreement will constitute an unsecured
obligation of the Guarantor and will rank subordinate and junior
in right of payment to all Senior Indebtedness of the Guarantor
to the extent and in the manner set forth in the Indenture with
respect to the [Subordinated] Debentures, and the provisions of
Article XV of the Indenture will apply, mutatis mutandis, to the
obligations of the Guarantor hereunder. The obligations of the
Guarantor hereunder do not constitute Senior Indebtedness of the
Guarantor.
SECTION 602. PARI PASSU GUARANTEES.
The obligations of the Guarantor under this Guarantee
Agreement shall rank pari passu with any similar guarantee
agreements issued by the Guarantor on behalf of the holders of
preferred or Trust Preferred Securities issued by any other trust
similar to the Trust and with any other security, guarantee or
other obligation that is expressly stated to rank pari passu with
the obligations of the Guarantor under this Guarantee Agreement.
14
SECTION 603. CONSOLIDATION, MERGER, SALE, TRANSFER OR
CONVEYANCE.
(a) The Guarantor shall not consolidate with or merge into
any other corporation or sell or otherwise dispose of its
properties as or substantially as an entirety to any Person
unless the Guarantor has delivered to the Guarantee Trustee an
Officers' Certificate and an opinion of counsel each stating that
such consolidation, merger, conveyance or transfer comply with
this Section 603 and the corporation formed by such consolidation
or into which the Guarantor is merged or the Person which
receives such properties pursuant to such sale, transfer or other
disposition (a) shall be a corporation organized and existing
under the laws of the United States of America, any state thereof
or the District of Columbia; and (b) shall expressly assume the
due and punctual payment of the Guarantee Payments and the
performance of every covenant of this Guarantee Agreement on the
part of the Guarantor to be performed or observed.
(b) Upon any consolidation or merger, or any sale, transfer
or other disposition of the properties of the Guarantor
substantially as an entirety in accordance with paragraph (a)
hereof, the successor corporation formed by such consolidation or
into which the Guarantor is merged or the Person to which such
sale, transfer or other disposition is made shall succeed to, and
be substituted for and may exercise every right and power of, the
Guarantor under this Guarantee Agreement with the same effect as
if such successor corporation or Person had been named as the
Guarantor herein and the Guarantor shall be released from all
obligations hereunder.
ARTICLE VII
TERMINATION
SECTION 701. TERMINATION. This Guarantee Agreement shall
terminate and be of no further force and effect upon (i) full
payment of the Redemption Price of all Trust Preferred
Securities, (ii) the distribution of [Subordinated] Debentures to
the Holders in exchange for all of the Trust Preferred Securities
or (iii) full payment of the amounts payable in accordance with
Article IX of the Trust Agreement upon liquidation of the Trust.
Notwithstanding the foregoing, this Guarantee Agreement will
continue to be effective or will be reinstated, as the case may
be, if at any time any Holder is required to restore payment of
any sums paid under the Trust Preferred Securities or this
Guarantee Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 801. SUCCESSORS AND ASSIGNS. All guarantees and
agreements contained in this Guarantee Agreement shall bind the
successors, assigns, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders of
the Trust Preferred Securities then outstanding. Except in
connection with a consolidation, merger or sale involving the
Guarantor that is permitted under Article XII of the Indenture
and pursuant to which the assignee agrees in writing to perform
the Guarantor's obligations hereunder, the Guarantor shall not
assign its obligations hereunder, and any purported assignment
that is not in accordance with these provisions shall be void.
15
SECTION 802. AMENDMENTS. Except with respect to any changes
that do not materially adversely affect the rights of the Holders
(in which case no consent of the Holders will be required), this
Guarantee Agreement may only be amended with the prior approval
of the Holders of not less than a Majority in Liquidation Amount
of the Trust Preferred Securities. The provisions of Article VI
of the Trust Agreement concerning meetings or consents of the
Holders shall apply to the giving of such approval.
SECTION 803. NOTICES. Any notice, request or other
communication required or permitted to be given hereunder shall
be in writing, duly signed by the party giving such notice, and
delivered, telecopied with receipt confirmed, or mailed by first
class mail as follows:
(a) if given to the Guarantor, to the address or telecopy
number set forth below or such other address or telecopy number
or to the attention of such other Person as the Guarantor may
give notice to the Guarantee Trustee and the Holders:
Great Plains Energy Incorporated
1201 Walnut
Kansas City, MO 64106-2124
Facsimile No. 816.556-2992
Attention: ___________, _______________
(b) if given to the Trust, at the Trust's (and the Guarantee
Trustee's) address or telecopy number set forth below or such
other address or telecopy number or to the attention of such
other Person as the Trust or Guarantee Trustee may give notice to
the Guarantee Trustee (if given by the Trust) and the Holders:
Great Plains Energy Capital Trust ___
c/o Great Plains Energy Incorporated
1201 Walnut
Kansas City, MO 64106-2124
Facsimile No.: (816) 556-2992
Attention: ____________, Administrator
with a copy to:
_______________________
_______________________
_______________________
Facsimile No.: _______
Attention: Corporate Trustee Administration
(c) if given to the Guarantee Trustee, to the address or
telecopy number set forth below or such other address or telecopy
number or to the attention of such other Person as the Guarantee
Trustee may give notice to the Guarantor and the Holders:
_______________________
_______________________
_______________________
Facsimile No.: _______
Attention: Corporate Trustee Administration
16
(d) if given to any Holder, at the address set forth on the
books and records of the Trust.
All notices hereunder shall be deemed to have been given
when received in person, telecopied with receipt confirmed, or
mailed by first class mail, postage prepaid, except that if a
notice or other document is refused delivery or cannot be
delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been
delivered on the date of such refusal or inability to deliver.
SECTION 804. BENEFIT. This Guarantee Agreement is solely
for the benefit of the Holders and is not separately transferable
from the Trust Preferred Securities.
SECTION 805. INTERPRETATION. In this Guarantee Agreement,
unless the context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but
not defined in the preamble Hereto have the respective
meanings assigned to them in Section 101;
(b) a term defined anywhere in this Guarantee Agreement has
the same meaning throughout;
(c) all references to "the Guarantee Agreement" or "this
Guarantee Agreement" are to this Guarantee Agreement as
modified, supplemented or amended from time to time;
(d) all references in this Guarantee Agreement to Articles
and Sections are to Articles and Sections of this Guarantee
Agreement unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Guarantee Agreement unless
otherwise defined in this Guarantee Agreement or unless the
context otherwise requires;
(f) a reference to the singular includes the plural and vice
versa; and
(g) the masculine, feminine or neuter genders used herein
shall include the masculine, feminine and neuter genders.
SECTION 806. GOVERNING LAW.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
SECTION 807. COUNTERPARTS.
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but
one and the same instrument.
17
THIS GUARANTEE AGREEMENT is executed as of the day and year
first above written.
GREAT PLAINS ENERGY INCORPORATED
as Guarantor
By: _______________________________
Name:
Title:
----------------------------,
as Guarantee Trustee, and not
in its individual capacity
By: _______________________________
Name:
Title:
18
FORM OF CERTIFICATE OF TRUST
Exhibit 4.h.
----------
FORM OF
CERTIFICATE OF TRUST OF
GREAT PLAINS ENERGY CAPITAL TRUST__
THIS CERTIFICATE OF TRUST of GREAT PLAINS ENERGY
CAPITAL TRUST (the "Trust"), dated ______________, 200_, is being
duly executed and filed by [Name of trustee], a Delaware banking
corporation, as trustee, to form a business trust under the
Delaware Business Trust Act (12 Del. C. ss. 3801 et seq.).
----------
1. Name. The name of the business trust formed hereby
is "Great Plains Energy Capital Trust."
2. Delaware Trustee. The name and address of the
trustee of the Trust with a principal place of business in the
State of Delaware is:
[Name and address of trustee].
3. Effective Date. This Certificate of Trust shall be
effective upon its filing with the Secretary of State of the
State of Delaware.
IN WITNESS WHEREOF, the undersigned, being the sole
trustee of the Trust, has executed this Certificate of Trust as
of the date first written above.
[NAME OF TRUSTEE],
not in its individual
capacity,
but solely as trustee
By: ------------------
------------------
FORM OF TRUST AGREEMENT
Exhibit 4.i.
GREAT PLAINS ENERGY CAPITAL TRUST
FORM OF TRUST AGREEMENT
THIS TRUST AGREEMENT, dated as of ____________, 200__, is
by and between (i) Great Plains Energy Incorporated, a Missouri
corporation (the "Depositor"), (ii) [name of Delaware trustee], a
Delaware banking corporation, as Delaware trustee (the "Delaware
Trustee"), and (iii) [name of administrative trustee], as
administrative trustee (the "Administrative Trustee," and
together with the Delaware Trustee, the "Trustees"). The
Depositor and the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as
"Great Plains Energy Capital Trust __."
2. The Depositor hereby assigns, transfers, conveys and
sets over to the Trust the sum of $10. Such amount shall
constitute the initial trust estate. The Trustees hereby declare
that they will hold the trust estate for the Depositor subject to
the terms hereof.
3. It is the intention of the parties hereto that the Trust
created hereby constitutes a business trust under Chapter 38 of
Title 12 of the Delaware Code, 12 Del. C. ss. 3801 (the "Business
Trust Act"), and that this document constitutes the governing
instrument of the Trust.
4. The Trustees are hereby authorized and directed to
execute and file a certificate of trust with the Delaware
Secretary of State in accordance with the provisions of the
Business Trust Act.
5. The Depositor, the Trustees and others will enter into
an amended and restated Trust Agreement, satisfactory to each
such party and substantially in the form to be included as an
exhibit to the Registration Statement on Form S-3 (the "1933 Act
Registration Statement") referred to below, or in such other form
as the Trustees and the Depositor may approve, to provide for the
contemplated operation of the Trust created hereby and the
issuance of Trust Preferred Securities referred to therein. Prior
to the execution and delivery of such amended and restated Trust
Agreement, the Trustees shall not have any duty or obligation
hereunder or with respect to the trust estate, except as
otherwise required by applicable law or as may be necessary to
obtain, prior to such execution and delivery, any licenses,
consents or approvals required by applicable law or otherwise.
Notwithstanding the foregoing, the Trustees may
take all actions deemed proper as are necessary to effect the
transactions contemplated herein.
6. The Depositor and the Trustees hereby authorize and
direct the Depositor, as the sponsor of the Trust, (i) to file
with the Securities and Exchange Commission (the "Commission")
and to execute, in the case of the 1933 Act Registration
Statement and 1934 Act Registration Statement (as herein
defined), on behalf of the Trust (a) the 1933 Act Registration
Statement, including pre-effective or post-effective amendments
to such Registration Statement relating to the registration
under the Securities Act of 1933, as amended (the "1933 Act"),
of the Trust Preferred Securities of the Trust, (b) any
preliminary prospectus or prospectus or supplement thereto
relating to the Trust Preferred Securities required to be
filed pursuant to Rule 424 under the 1933 Act, and (c) a
Registration Statement on Form 8-A or other
appropriate form (the "1934 Act Registration Statement")
(including all pre-effective and post-effective amendments
thereto) relating to the registration of the Trust
Preferred Securities of the Trust under Section 12(b) of the
Securities Exchange Act of 1934, as amended; (ii) to file with
any national securities exchange and execute on behalf of the
Trust a listing application and all other applications,
statements, certificates, agreements and other instruments as
shall be necessary or desirable to cause the Trust Preferred
Securities to be listed on such exchange; (iii) to file and
execute on behalf of the Trust such applications, reports, surety
bonds, irrevocable consents, appointments of attorney for service
of process and other papers and documents as shall be necessary
or desirable to register the Trust Preferred Securities under the
securities or "Blue Sky" laws of such jurisdictions as the
Depositor, on behalf of the Trust, may deem necessary or
desirable; and (iv) to execute, deliver and perform on behalf of
the Trust, an underwriting agreement with the Depositor and the
underwriter or underwriters of the Trust Preferred Securities of
the Trust. In the event that any filing referred to in clauses
(i) through (iii) above is required by the rules and regulations
of the Commission, any national securities exchange or state
securities or Blue Sky laws to be executed on behalf of the Trust
by the Trustees, the Trustees, in their capacity as trustees of
the Trust, are hereby authorized and directed to join in any such
filing and to execute on behalf of the Trust any and all of the
foregoing, it being understood that [name of Delaware trustee],
in its capacity as trustee of the Trust, shall not be required to
join in any such filing or execute on behalf of the Trust any
such document unless required by the rules and regulations of the
Commission, any national securities exchange or state securities
or Blue Sky laws. In connection with all of the foregoing, each
of the Trustees, solely in its capacity as trustee of the Trust,
and the Depositor hereby constitutes and appoints [ ], and each
of them severally, as its true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution for the
Depositor or in the Depositor's name, place and stead, in any and
all capacities, to sign any and all amendments (including all pre-
effective and post-effective amendments) to the 1933 Act
Registration Statement and the 1934 Act Registration Statement
and to file the same, with all exhibits thereto, and any other
documents in connection therewith, with the Commission, granting
unto said attorney-in-fact and agent full power and authority to
do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all
intents and purposes as the Depositor might or could do in
person, hereby ratifying and confirming all that said attorney-in-
fact and agent or his respective substitute or substitutes, shall
do or cause to be done by virtue hereof.
7. This Trust Agreement may be executed in one or more
counterparts.
8. The number of trustees initially shall be two (2) and
thereafter the number of trustees shall be such number as shall
be fixed from time to time by a written instrument signed by
the Depositor, who may increase or decrease the number of
trustees; provided, however, that, to the extent required by the
Business Trust Act, one trustee shall either be a natural person
who is a resident of Delaware or, if not a natural person, an
entity which has its principal place of business in the State of
Delaware and otherwise meets the requirements of applicable
Delaware law. Subject to the foregoing, the Depositor is entitled
to appoint or remove without cause any trustee at any time.
Any trustee may resign upon thirty (30) days' prior written
notice to the Depositor.
9. [Name of Delaware trustee], in its capacity as trustee
of the Trust, shall not have any of the powers or duties of the
Trustees as set forth herein and shall be a trustee of the Trust
for the sole purpose of satisfying the requirements of Section
3807(a) of the Business Trust Act.
10. This Trust Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware
(without regard to conflict of laws principles).
IN WITNESS WHEREOF, the parties hereto, intending to be
legally bound, have caused this Trust Agreement to be duly
executed as of the date first written above.
GREAT PLAINS ENERGY INCORPORATED,
as Depositor
By: ______________________________
[NAME OF DELAWARE TRUSTEE],
as Delaware trustee,
and not in its
individual capacity
By: ______________________________
______________________________
FORM OF AMENDED AND RESTATED TRUST AGREEMENT
Exhibit 4.j.
FORM OF
AMENDED AND RESTATED
TRUST AGREEMENT
AMONG
GREAT PLAINS ENERGY INCORPORATED
AS DEPOSITOR,
----------------------------------------------
AS PROPERTY TRUSTEE,
AND
----------------------------------------------
AS DELAWARE TRUSTEE
DATED AS OF ____________________, 200_
----------------------------
GREAT PLAINS ENERGY CAPITAL TRUST __
----------------------------
i
TABLE OF CONTENTS*
PARTIES 1
RECITALS 1
ARTICLE ONE
Defined Terms
SECTION 101 Definitions 1
ARTICLE TWO
Continuation of the Trust
SECTION 201 Name 11
SECTION 202 Office of the Delaware Trustee; Principal Place 11
of Business
SECTION 203 Initial Contribution of Trust Property; 11
Organizational Expenses
SECTION 204 Issuance of the Trust Preferred Securities 11
SECTION 205 Issuance of the Trust Common Securities; 12
Subscription and Purchase of [Subordinated]
Debentures
SECTION 206 Declaration of Trust 12
SECTION 207 Authorization to Enter Into Certain 13
Transactions
SECTION 208 Assets of Trust 15
SECTION 209 Trust Property 16
ARTICLE THREE
Payment Account
SECTION 301 Payment Account 16
ARTICLE FOUR
Distribution; Redemption
SECTION 401 Distribution 16
SECTION 402 Redemption 17
SECTION 403 Subordination of Trust Common Securities 19
SECTION 404 Payment Procedures 20
SECTION 405 Tax Returns and Reports 20
SECTION 406 Payment of Taxes, Duties, Etc. of the Trust 21
SECTION 407 Payments Under Indenture or Pursuant to Direct 21
Actions
SECTION 408 Liability of the Holder of Trust Common 21
Securities
* The Table of Contents is not part of the Agreement
ii
ARTICLE FIVE
Trust Securities Certificates
SECTION 501 Initial Ownership 21
SECTION 502 The Trust Securities Certificates 21
SECTION 503 Execution and Delivery of Trust Securities 22
Certificates
SECTION 504 Global Trust Preferred Securities 22
SECTION 505 Registration of Transfer and Exchange 24
Generally; Certain Transfers and Exchanges;
Trust Preferred Securities Certificates
SECTION 506 Mutilated, Destroyed, Lost or Stolen Trust 25
Securities Certificates
SECTION 507 Persons Deemed Holders 26
SECTION 508 Access to List of Holders' Names and Addresses 26
SECTION 509 Maintenance of Office or Agency 26
SECTION 510 Appointment of Paying Agent 26
SECTION 511 Ownership of Trust Common Securities by 27
Depositor
SECTION 512 Notices to Depositary 27
SECTION 513 Rights of Holders 28
ARTICLE SIX
Acts of Holders; Meetings; Voting
SECTION 601 Limitations on Holder's Voting Rights 30
SECTION 602 Notice of Meetings 30
SECTION 603 Meetings of Holders 31
SECTION 604 Attendance at Meetings; Determination of Voting 32
Rights; Conduct and Adjournment of Meetings
SECTION 605 Counting Votes and Recording Action of Meetings 33
SECTION 606 Holder Action by Written Consent 33
SECTION 607 Record Date for Voting and Other Purposes 33
SECTION 608 Acts of Holders 34
SECTION 609 Inspection of Records 35
ARTICLE SEVEN
Representations and Warranties
SECTION 701 Representations and Warranties of the Property 35
Trustee and the Delaware Trustee
SECTION 702 Representations and Warranties of Depositor 36
iii
ARTICLE EIGHT
The Trustees; The Administrators
SECTION 801 Certain Duties and Responsibilities 37
SECTION 802 Events of Default; Waiver 38
SECTION 803 Certain Notices 39
SECTION 804 Certain Rights of Property Trustee 39
SECTION 805 Not Responsible for Recitals or Issuance of 40
Securities
SECTION 806 May Hold Securities 40
SECTION 807 Compensation; Indemnity 40
SECTION 808 Trustees Required; Eligibility of Trustees and 41
Administrators
SECTION 809 Conflicting Interests 42
SECTION 810 Co-Trustees and Separate Trustee 42
SECTION 811 Resignation and Removal; Appointment of 43
Successor
SECTION 812 Acceptance of Appointment by Successor 45
SECTION 813 Merger, Conversion, Consolidation, or 45
Succession to Business
SECTION 814 Preferential Collection of Claims Against 45
Depositor or Trust
SECTION 815 Trustee May File Proofs of Claim 46
SECTION 816 Reports by Property Trustee 46
SECTION 817 Reports to the Property Trustee 47
SECTION 818 Evidence of Compliance with Conditions 47
Precedent
SECTION 819 Number of Trustees 47
SECTION 820 Delegation of Power 47
SECTION 821 Appointment of Administrators 47
SECTION 822 Delaware Trustee 48
ARTICLE NINE
Dissolution, Liquidation, and Merger
SECTION 901 Dissolution Upon Expiration Date 49
SECTION 902 Early Dissolution 49
SECTION 903 Termination 49
SECTION 904 Liquidation 49
SECTION 905 Mergers, Consolidations, Amalgamations or 51
Replacements of the Trust
iv
ARTICLE TEN
Miscellaneous Provisions
SECTION 1001 Limitations of Rights of Holders 52
SECTION 1002 Amendment 52
SECTION 1003 Separability 53
SECTION 1004 Governing Law 53
SECTION 1005 Payments Due on Non-Business Day 54
SECTION 1006 Successors 54
SECTION 1007 Headings 54
SECTION 1008 Reports, Notices and Demands 54
SECTION 1009 Agreement Not to Petition 55
SECTION 1010 Trust Indenture Act; Conflict with Trust 55
Indenture Act
SECTION 1011 Acceptance of Terms of Trust Agreement; 55
Guarantee and Indenture
EXHIBITS
EXHIBIT A Certificate of Trust 58
EXHIBIT B Certificate Evidencing Trust Common 59
Securities
EXHIBIT C Certificate Evidencing Trust Preferred 61
Securities
V
GREAT PLAINS ENERGY CAPITAL TRUST __
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the Trust Indenture Act of 1939
Trust Agreement
Section of Act Section
310 (a) (1) . . . . . . . . . . . . . . . . 808
(a) (2) . . . . . . . . . . . . . . . 808
(a) (3) . . . . . . . . . . . . . . . 810
(a) (4) . . . . . . . . . . . . . . . 207(a)(ii)
(a) (5) . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . 809, 811
(c) . . . . . . . . . . . . . . . . . Not Applicable
311 (a) . . . . . . . . . . . . . . . . . . 814
(b) . . . . . . . . . . . . . . . . . 814
(c) . . . . . . . . . . . . . . . . . Not Applicable
312 (a) . . . . . . . . . . . . . . . . . . 508
(b) . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . 508
313 (a) . . . . . . . . . . . . . . . . . . 816
(b) . . . . . . . . . . . . . . . . . 816
(c) . . . . . . . . . . . . . . . . . 816
(d) . . . . . . . . . . . . . . . . . 816
314 (a) . . . . . . . . . . . . . . . . . . 817
(a) (4) . . . . . . . . . . . . . . . 818
(b) . . . . . . . . . . . . . . . . . Not Applicable
(c) (1) . . . . . . . . . . . . . . . 818
(c) (2) . . . . . . . . . . . . . . . 818
(c) (3) . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . 818
(f) . . . . . . . . . . . . . . . . . Not Applicable
315 (a). . . . . . . . . . . . . . . . . . . 801, 804
(b) . . . . . . . . . . . . . . . . . 803
(c) . . . . . . . . . . . . . . . . . 801
(d) . . . . . . . . . . . . . . . . . 801
(e) . . . . . . . . . . . . . . . . . Not Applicable
316 (a) . . . . . . . . . . . . . . . . . . 513
(a)(1)(A) . . . . . . . . . . . . . . 513
(a)(1)(B) . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . 513
(c) . . . . . . . . . . . . . . . . . 607
317 (a)(1) . . . . . . . . . . . . . . . . . Not Applicable
(a) (2) . . . . . . . . . . . . . . . 815
(b) . . . . . . . . . . . . . . . . . 510
318 (a) . . . . . . . . . . . . . . . . . . 1010
- -------------------------
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Trust Agreement.
vi
AGREEMENT
THIS AMENDED AND RESTATED TRUST AGREEMENT (this "Trust
Agreement"), dated as of _____________________, 200_, by and
among (i) Great Plains Energy Incorporated, a Missouri
corporation (including any successors or assigns, the
"Depositor"), (ii) __________________________, a New York banking
corporation, as property trustee (in such capacity, the "Property
Trustee" and, in its separate corporate capacity and not in its
capacity as Property Trustee, the "Bank"), (iii)
_________________________________, a ___________________ banking
corporation, as Delaware trustee (the "Delaware Trustee") (the
Property Trustee and the Delaware Trustee are referred to
collectively herein as the "Trustees"), and (iv) the several
Holders, as hereinafter defined.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Depositor and the Delaware Trustee have
heretofore duly declared and established a business trust
pursuant to the Delaware Business Trust Act by entering into a
certain Trust Agreement, dated as of __________________________
(the "Original Trust Agreement"), and by the execution and filing
by the Delaware Trustee with the Secretary of State of the State
of Delaware of the Certificate of Trust, filed on
______________________ (the "Certificate of Trust"), attached as
Exhibit A; and
WHEREAS, the Depositor and the Delaware Trustee desire to
amend and restate the Original Trust Agreement in its entirety as
set forth herein to provide for, among other things, (i) the
issuance of the Trust Common Securities by the Trust to the
Depositor, (ii) the issuance and sale of the Trust Preferred
Securities by the Trust pursuant to the Underwriting Agreement,
(iii) the acquisition by the Trust from the Depositor of all of
the right, title and interest in the [Subordinated] Debentures,
(iv) the appointment of the Administrators and (v) the addition
of the Property Trustee as a party to this Trust Agreement;
NOW, THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, each party, for the benefit of the other parties
and for the benefit of the Holders, hereby amends and restates
the Original Trust Agreement in its entirety and agrees,
intending to be legally bound, as follows:
ARTICLE I
DEFINED TERMS
Section 101 DEFINITIONS. For all purposes of this Trust
Agreement, except as otherwise expressly provided or unless the
context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as
well as the singular;
(b) all other terms used herein that are defined in the
Trust Indenture Act, either directly or by reference
therein, have the meanings assigned to them therein;
1
(c) the words "include," "includes" and "including" shall be
deemed to be followed by the phrase "without limitation";
(d) all accounting terms used but not defined herein have
the meanings assigned to them in accordance with United
States generally accepted accounting principles as in effect
at the time of computation;
(e) unless the context otherwise requires, any reference to
an "Article" or a "Section" refers to an Article or a
Section, as the case may be, of this Trust Agreement;
(f) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Trust Agreement as a
whole and not to any particular Article, Section or other
subdivision; and
(g) all references to the date the Trust Preferred
Securities were originally issued shall refer to the date
the ______% Trust Preferred Securities were originally
issued.
"ACT" has the meaning specified in Section 608.
"ADDITIONAL AMOUNTS" means, with respect to Trust
Securities of a given Liquidation Amount and/or a given period,
the amount of Additional Interest paid by the Depositor on a Like
Amount of [Subordinated] Debentures for such period.
"ADDITIONAL INTEREST" has the meaning specified in Section
___ of the Indenture.
"ADDITIONAL SUMS" has the meaning specified in Section ___
of the Indenture.
"ADMINISTRATORS" means each Person appointed in accordance
with Section 821 solely in such Person's capacity as
Administrator of the Trust continued hereunder and not in such
Person's individual capacity, or any successor Administrator
appointed as herein provided; with the initial Administrators
being ___________________ and __________________________.
"AFFILIATE" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person. For
the purposes of this definition, "CONTROL" when used with respect
to any specified Person means the power to direct the management
and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or
otherwise; and the terms "CONTROLLING" and "CONTROLLED" have
meanings correlative to the foregoing.
"APPLICABLE PROCEDURES" means, with respect to any transfer
or transaction involving a Global Trust Preferred Security or
beneficial interest therein, the rules and procedures of the
Depositary for such Trust Preferred Security, in each case to the
extent applicable to such transaction and as in effect from time
to time.
"BANK" has the meaning specified in the preamble to this
Trust Agreement.
"BANKRUPTCY EVENT" means, with respect to any Person:
(a) the entry of a decree or order by a court having
jurisdiction in the premises and the continuance of any such
decree or order unstayed and in effect for a period of 60
consecutive days; (i) judging such Person a bankrupt or
insolvent; (ii) approving as
2
properly filed a petition seeking reorganization,
arrangement, adjudication or composition of or in respect of
such Person under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law;
(iii) appointing a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of such Person or
of any substantial part of its property; (iv) ordering the
winding-up or liquidation of its affairs; or
(b) (i) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent; (ii) the consent by it
to the institution of bankruptcy or insolvency proceedings
against it; (iii) the filing by it of a petition or answer
or consent seeking reorganization or relief under any
applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law; (iv) the consent by it
to the filing of any such petition or to the appointment of
a receiver, liquidator, assignee, trustee, sequestrator (or
similar official) of such Person or of any substantial part
of its property; (v) the making by it of an assignment for
the benefit of creditors, or the admission by it in writing
of its inability to pay its debts generally as they become
due and its willingness to be adjudicated a bankrupt; (vi)
the taking of corporate action by such Person in furtherance
of any such action.
"BANKRUPTCY LAWS" has the meaning specified in Section
1009.
"BOARD OF DIRECTORS" means either the board of directors of
the Depositor or any committee thereof duly authorized to act or
any director or directors and/or officer or officers of the
Depositor to whom that board or committee shall have duly
delegated its authority in respect of matters relating to this
Trust Agreement.
"BOARD RESOLUTION" means a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Depositor to
have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification, and
delivered to the Trustees.
"BUSINESS DAY" means a day other than (a) a Saturday or
Sunday, (b) a day on which banking institutions in the City of
New York, New York are authorized or required by law or executive
order to remain closed or (c) a day on which the Property
Trustee's Corporate Trust Office or the Delaware Trustee's
corporate trust office or the corporate trust office of the
Debenture Trustee is closed for business.
"CEDE" means Cede & Co.
"CERTIFICATE OF TRUST" has the meaning specified in the
preamble to this Trust Agreement.
"CLOSING DATE" means the Closing Time, which date is also
the date of execution and delivery of this Trust Agreement.
"CLOSING TIME" means the First Closing Date, as that term
is used throughout the Underwriting Agreement.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMISSION" means the Securities and Exchange Commission,
as from time to time constituted, created under the Exchange Act,
as amended, or, if at any time after the execution of this
instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
3
"CORPORATE TRUST OFFICE" means the principal corporate
trust office of the
Property Trustee located in the City of New York which at the
time of the execution of this Trust Agreement is located
at___________________________________________________.
"DEBENTURE EVENT OF DEFAULT" means an "Event of Default" as
defined in the Indenture.
"DEBENTURES PURCHASE AGREEMENT" means the [Subordinated]
Deferrable Interest Debentures Purchase Agreement dated as of
___________________________ between the Depositor and the Trust,
as the same may be amended from time to time.
"DEBENTURE REDEMPTION DATE" means, with respect to any
[Subordinated] Debentures to be redeemed under the Indenture, the
date fixed for redemption of such Debentures under the Indenture.
"DEBENTURE TRUSTEE" means ________________________________,
a New York
banking corporation, as trustee under the Indenture, and any
successor.
"DEFINITIVE TRUST PREFERRED SECURITIES" has the meaning
specified in Section 504(c).
"DELAWARE BUSINESS TRUST ACT" means Chapter 38 of Title 12
of the Delaware Code, 12 Del. C.ss. 3801, et seq., as it may be
amended from time to time.
"DELAWARE TRUSTEE" means the corporation identified as the
"Delaware Trustee" in the preamble to this Trust Agreement solely
in its capacity as Delaware Trustee of the Trust continued
hereunder and not in its individual capacity, or its successor in
interest in such capacity, or any successor trustee appointed as
herein provided.
"DEPOSITARY" shall mean, with respect to Global Trust
Preferred Securities, The Depository Trust Company, New York, New
York, another clearing agency, or any successor registered as a
clearing agency under the Exchange Act or other applicable
statute or regulation, which, in each case, shall be designated
by the Depositor pursuant to Section 504(b).
"DEPOSITARY PARTICIPANT" means a broker, dealer, bank,
other financial institution or other Person for whom from time to
time the Depositary effects book-entry transfers and pledges of
securities deposited with the Depositary.
"DEPOSITOR" has the meaning specified in the preamble to
this Trust Agreement.
"DIRECT ACTION" has the meaning specified in Section
513(c).
"DISTRIBUTION DATE" has the meaning specified in Section
401(a).
"DISTRIBUTIONS" means amounts payable in respect of the
Trust Securities as provided in Section 401.
"EARLY TERMINATION EVENT" has the meaning specified in
Section 902.
4
"EVENT OF DEFAULT" means any one of the following events
(whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or
governmental body):
(a) the occurrence of a Debenture Event of Default;
(b) default by the Trust in the payment of any Distribution
when it becomes due and payable, and continuation of such
default for a period of 30 days;
(c) default by the Trust in the payment of any Redemption
Price of any Trust Security when it becomes due and payable,
and continuation of such default for a period of 1 day;
(d) default in the performance, or breach, in any material
respect, of any covenant or warranty of the Trustees in this
Trust Agreement (other than a covenant or warranty a default
in the performance of which or the breach of which is dealt
with in clause (b) or (c) above) and continuation of such
default or breach for a period of 60 days after there has
been given, by registered or certified mail, to the Trustees
and the Depositor by the Holders of at least 33% in
aggregate Liquidation Amount of the Outstanding Trust
Preferred Securities, a written notice specifying such
default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder;
(e) the occurrence of any Bankruptcy Event with respect to
the Property Trustee or all or substantially all of its
property if a successor Property Trustee has not been
appointed within a period of 90 days thereof; or
(f) the occurrence of any Bankruptcy Event with
respect to the Trust.
"EXCHANGE ACT" shall mean the Securities Exchange Act of
1934, as amended, and any successor statute thereto, as amended
from time to time.
"EXPIRATION DATE" has the meaning specified in Section 901.
"GLOBAL TRUST PREFERRED SECURITIES CERTIFICATE" means a
Trust Preferred Securities Certificate evidencing ownership of Global
Trust Preferred Securities.
"GLOBAL TRUST PREFERRED SECURITY" means a Trust Preferred
Security, the ownership and transfers of which shall be made
through book entries by the Depositary as described in Section
504.
"GUARANTEE" means the Guarantee Agreement executed and
delivered by the Depositor and __________________, as trustee,
contemporaneously with the execution and delivery of this Trust
Agreement, for the benefit of the Holders of the Trust Preferred
Securities, as amended from time to time.
"HOLDER" means a Person in whose name a Trust Security or
Trust Securities is registered in the Securities Register; any
such Person shall be deemed to be a beneficial owner within the
meaning of the Delaware Business Trust Act.
5
"INDENTURE" means the Indenture, dated as of _____________,
between the Depositor and the Debenture Trustee (as amended or
supplemented from time to time) relating to the issuance of the
[Subordinated] Debentures.
"INVESTMENT COMPANY ACT" means the Investment Company Act
of 1940, as amended.
"INVESTMENT COMPANY EVENT" means the receipt by the Trust
of an Opinion of 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, 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 issuance of the
Trust Preferred Securities.
"LIEN" means any lien, pledge, charge, encumbrance,
mortgage, deed of trust, adverse ownership interest,
hypothecation, assignment, security interest or preference,
priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"LIKE AMOUNT" means (a) with respect to a redemption of
Trust Securities, Trust Securities having a Liquidation Amount
equal to that portion of the principal amount of [Subordinated]
Debentures to be contemporaneously redeemed in accordance with
the Indenture, allocated to the Trust Common Securities and to
the Trust Preferred Securities pro rata based upon the relative
Liquidation Amounts of such classes and (b) with respect to a
distribution of [Subordinated] Debentures to Holders of Trust
Securities in connection with a dissolution or liquidation of the
Trust, [Subordinated] Debentures having a principal amount equal
to the Liquidation Amount of the Trust Securities of the Holder
to whom such [Subordinated] Debentures are distributed.
"LIQUIDATION AMOUNT" means the stated amount of $__________
per Trust Security.
"LIQUIDATION DATE" means the date on which [Subordinated]
Debentures are to be distributed to Holders of Trust Securities
in connection with a dissolution and liquidation of the Trust
pursuant to Section 904.
"LIQUIDATION DISTRIBUTION" has the meaning specified in
Section 904(d).
"MAJORITY IN LIQUIDATION AMOUNT OF THE TRUST PREFERRED
SECURITIES" or "MAJORITY IN LIQUIDATION AMOUNT OF THE TRUST COMMON
SECURITIES" means, except as provided by the Trust Indenture Act, Trust
Preferred Securities or Trust Common Securities, as the case may be,
representing more than 50% of the aggregate Liquidation Amount of
all then Outstanding Trust Preferred Securities or Trust Common
Securities, as the case may be.
"OFFICERS' CERTIFICATE" means a certificate signed by the
Chairman of the Board, President, any Vice President, the
Treasurer or any other duly authorized officer of the Depositor,
and delivered to the party provided herein. Any Officers'
Certificate delivered with respect to compliance with a condition
or covenant provided for in this Trust Agreement (other than
pursuant to Section 817) shall include:
6
(a) a statement that each Person signing such certificate or
opinion has read such covenant or condition and the
definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such Person,
such Person has made such examination or investigation as is
necessary to enable such Person to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of each such
Person, such condition or covenant has been complied with.
"OPINION OF COUNSEL" means a written opinion of counsel,
who may be counsel for or an employee of the Depositor or any
Affiliate of the Depositor or any Trustee.
"ORIGINAL TRUST AGREEMENT" has the meaning specified in the
preamble to this Trust Agreement.
"OUTSTANDING," when used with respect to Trust Securities,
means, as of the date of determination, all Trust Securities
theretofore authenticated and delivered under this Trust
Agreement, except:
(a) Trust Securities theretofore canceled by the Property
Trustee or delivered to the Property Trustee for
cancellation;
(b) Trust Securities for whose payment or redemption money
in the necessary amount has been theretofore deposited with
the Property Trustee or any Paying Agent for the Holders of
such Trust Preferred Securities, provided that if such Trust
Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Trust Agreement; and
(c) Trust Securities which have been paid, or in exchange
for, or in lieu of which, other Trust Securities have been
executed and delivered pursuant to Sections 504, 505 and
506, other than any such Trust Securities in respect of
which there shall have been presented to the Property
Trustee proof satisfactory to it and the Depositor that such
Trust Securities are held by a bona fide purchaser or
purchasers in whose hands such Trust Securities are valid
obligations of the Depositor;
provided, however, that in determining whether or not the Holders
of the requisite Liquidation Amount of the Trust Preferred
Securities Outstanding under this Trust Agreement have given any
request, demand, authorization, direction, notice, consent or
waiver hereunder or whether or not a quorum is present at a
meeting of Holders of Trust Securities, Trust Securities owned by
the Depositor, any Trustee, any Administrator or any other
obligor upon the Trust Securities or any Affiliate of the
Depositor or of such other obligor (unless the Depositor, such
Affiliate or such obligor owns all Trust Securities Outstanding
under this Trust Agreement determined without regard to this
proviso) shall be disregarded and deemed not to be Outstanding,
except that (i) in determining whether any Trustee or any
Administrator shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or
waiver or upon any such determination as to the presence of a quorum,
only Trust Preferred Securities that such Trustee or such Administrator,
as the case may be, knows to be so owned shall be so
7
disregarded and (ii) the foregoing shall not apply at any time
when all of the Outstanding Trust Preferred Securities are owned
by the Depositor, one or more of the Trustees, one or more of the
Administrators and/or any such Affiliate; provided, however, that
Trust Preferred Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Administrators the
pledgee's right so to act with respect to such Trust Preferred
Securities and that the pledgee is not the Depositor or any other
obligor upon the Trust Preferred Securities or any Affiliate of
the Depositor or of such other obligor.
"OWNER" means each Person who is the beneficial owner of
Global Trust Preferred Securities as reflected in the records of
the Depositary or, if a Depositary Participant is not the Owner,
then as reflected in the records of a Person maintaining an
account with such Depositary (directly or indirectly), in
accordance with the rules of such Depositary.
"PAYING AGENT" means any paying agent or co-paying agent
appointed pursuant to Section 510 and shall initially be the
Property Trustee.
"PAYMENT ACCOUNT" means a segregated non-interest-bearing
corporate trust account maintained with the Property Trustee in
its corporate trust department for the benefit of the Holders in
which all amounts paid in respect of the [Subordinated]
Debentures will be held and from which the Property Trustee,
through the Paying Agent, shall make payments to the Holders in
accordance with Sections 401 and 402.
"PERSON" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association,
joint stock company, company, limited liability company, trust,
unincorporated organization or government or any agency or
political subdivision thereof, or any other entity of whatever
nature.
"PROPERTY TRUSTEE" means the Person identified as the
"Property Trustee" in the preamble to this Trust Agreement solely
in its capacity as Property Trustee of the Trust continued
hereunder and not in its individual capacity, or its successor in
interest in such capacity, or any successor property trustee
appointed as herein provided.
"REDEMPTION DATE" means, with respect to any Trust Security
to be redeemed, the date fixed for such redemption by or pursuant
to this Trust Agreement; provided that each Debenture Redemption
Date and the stated maturity of the [Subordinated] Debentures
shall be a Redemption Date for a Like Amount of Trust Securities,
including but not limited to any date of redemption pursuant to
the occurrence of any Special Event.
"REDEMPTION PRICE" means a price equal to 100% of the
Liquidation Amount of the Trust Security to be redeemed, together
with accumulated Distributions to but excluding the date fixed
for redemption and the related amount of the premium, if any,
paid by the Depositor upon the concurrent redemption of the
[Subordinated] Debentures.
"RELEVANT TRUSTEE" has the meaning specified in Section
811.
"RESPONSIBLE OFFICER" when used with respect to the
Property Trustee means any officer assigned to the Corporate
Trust Office, including any managing director, vice president,
assistant vice president, assistant treasurer, assistant
secretary, trust officer, senior trust officer or any other
officer of the Property Trustee customarily performing functions
similar to those performed by any of the above designated
officers and having direct responsibility for the administration
of the Indenture, and also, with respect to a particular matter,
any other officer to
8
whom such matter is referred because of such officer's knowledge
of and familiarity with the particular subject.
"SECURITIES ACT" means the Securities Act of 1933, as
amended, and any successor statute thereto, in each case as
amended from time to time.
"SECURITIES REGISTER" and "SECURITIES REGISTRAR" have the
respective meanings specified in Section 505.
"SENIOR INDEBTEDNESS" has the meaning specified in the
Indenture.
"SPECIAL EVENT" means any Tax Event or Investment Company
Event.
"[SUBORDINATED] DEBENTURES" means the aggregate principal
amount of the Depositor's _______% [Subordinated] Deferrable
Interest Debentures, Series __ due ___________________, issued
pursuant to the Indenture.
"SUCCESSOR TRUST PREFERRED SECURITIES CERTIFICATE" of any
particular Trust Preferred Securities Certificate means every Trust
Preferred Securities Certificate issued after, and evidencing all
or a portion of the same beneficial interest in the Trust as that
evidenced by, such particular Trust Preferred Securities
Certificate; and, for the purposes of this definition, any Trust
Preferred Securities Certificate executed and delivered under
Section 506 in exchange for or in lieu of a mutilated, destroyed,
lost or stolen Trust Preferred Securities Certificate shall be
deemed to evidence the same beneficial interest in the Trust as
the mutilated, destroyed, lost or stolen Trust Preferred
Securities Certificate.
"SUCCESSOR TRUST PREFERRED SECURITY" has the meaning
specified in Section 905.
"TAX EVENT" means the receipt by 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 official or
administrative pronouncement or action or judicial decision
interpreting or applying such laws or regulations, which
amendment or change is effective or which pronouncement, action
or decision is announced on or after the date of issuance of the
Trust Preferred Securities (including, without limitation, any of
the foregoing arising with respect to, or resulting from, any
proceeding or other action commencing on or before such date),
there is more than an insubstantial risk that (i) the Trust is,
or will be within 90 days of the delivery of such Opinion of
Counsel, subject to United States Federal income tax with respect
to income received or accrued on the [Subordinated] Debentures,
(ii) interest payable by the Depositor on the [Subordinated]
Debentures is not, or within 90 days of the delivery of such
Opinion of Counsel will not be, deductible by the Depositor,
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 delivery
of such Opinion of Counsel, subject to more than a de minimis
amount of other taxes, duties or other governmental charges.
"TRUST" means Great Plains Energy Capital Trust __.
"TRUST AGREEMENT" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented
in accordance with the applicable provisions hereof, including
(i) all exhibits hereto, and (ii) for all purposes of this
Amended and Restated
9
Trust Agreement and any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this Amended and Restated Trust
Agreement and any modification, amendment or supplement,
respectively.
"TRUST COMMON SECURITIES CERTIFICATE" means a certificate
evidencing ownership of Trust Common Securities, substantially in
the form attached as Exhibit B.
"TRUST COMMON SECURITIES PURCHASE AGREEMENT" means the
Trust Common Securities Purchase Agreement dated as of
__________________ between the Trust and the Depositor, as the
same may be amended from time to time.
"TRUST COMMON SECURITY" means an undivided beneficial
interest in the assets of the Trust, having a Liquidation Amount
of $____________and having the rights provided therefor in this
Trust Agreement, including the right to receive Distributions and
a Liquidation Distribution as provided herein.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939
as in force and effect as of the date of execution of this Trust
Agreement; provided, however, that in the event the Trust
Indenture Act of 1939 is succeeded by another statute or is
amended after such date, "Trust Indenture Act" shall mean such
successor statute or the Trust Indenture Act of 1939, as so
amended, to the extent such successor statute or amendment is
applicable to this Trust Agreement or to the actions of the
Depositor or the Property Trustee under or pursuant to
this Trust Agreement.
"TRUST PREFERRED SECURITIES CERTIFICATE" means a
certificate evidencing ownership of Trust Preferred Securities,
substantially in the form attached as Exhibit C.
"TRUST PREFERRED SECURITY" means a preferred undivided
beneficial interest in the assets of the Trust, having a
Liquidation Amount of $___________and having the rights provided
therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"TRUST PROPERTY" means (a) the [Subordinated] Debentures,
(b) any cash on deposit in, or owing to, the Payment Account, (c)
all proceeds and rights in respect of the foregoing and (d) any
other property and assets for the time being held or deemed to be
held by the Property Trustee pursuant to the trusts of this Trust
Agreement.
"TRUST SECURITIES CERTIFICATE" means any one of the Trust
Common Securities Certificates or the Trust Preferred Securities
Certificates.
"TRUST SECURITY" means any one of the Trust Common
Securities or the Trust Preferred Securities.
"TRUSTEES" means, collectively, the Property Trustee and
the Delaware Trustee.
"UNDERWRITERS" has the meaning specified in the
Underwriting Agreement.
"UNDERWRITING AGREEMENT" means the Underwriting Agreement,
dated as of
_________, among the Trust, the Depositor and the Underwriters,
as the same may be amended from time to time.
10
ARTICLE II
CONTINUATION OF THE TRUST
Section 201 NAME. The Trust continued hereby shall be known
as "Great Plains Energy Capital Trust __," as such name may be modified
from time to time by the Administrators following written notice to
the Holders of Trust Securities and the Trustees, in which name the
Administrators and the Trustees may engage in the transactions
contemplated hereby, make and execute contracts and other
instruments on behalf of the Trust and sue and be sued.
Section 202 OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE
OF BUSINESS. The address of the Delaware Trustee in the State of
Delaware is __________________________, Attention: Corporate Trustee
Administration Department, or such other address in the State of
Delaware as the Delaware Trustee may designate by written notice
to the Holders and the Depositor. The principal executive office
of the Trust is in care of Great Plains Energy Incorporated, 1201
Walnut, Kansas City, Missouri 64106.
Section 203 INITIAL CONTRIBUTION OF TRUST PROPERTY;
ORGANIZATIONAL EXPENSES. The Property Trustee acknowledges
receipt in trust from the Depositor in connection with this Trust
Agreement of the sum of $_____________, which constitutes the
initial Trust Property. The Depositor shall pay all
organizational expenses of the Trust as they arise or shall, upon
request of any Trustee, promptly reimburse such Trustee for any
such expenses paid by such Trustee. The Depositor shall make no
claim upon the Trust Property for the payment of such expenses.
Section 204 ISSUANCE OF THE TRUST PREFERRED SECURITIES. The
Depositor and the Trust executed and delivered the Underwriting
Agreement as of ___________, pursuant to the Original Trust
Agreement. Contemporaneously with the execution and delivery of
this Trust Agreement, an Administrator, on behalf of the Trust,
shall by manual or facsimile signature execute in accordance with
Section 503 and the Property Trustee shall authenticate in
accordance with Section 503 and deliver to the Underwriters,
Trust Preferred Securities Certificates, registered in the names
requested by the Underwriters, in an aggregate amount of
_________ Trust Preferred Securities having an aggregate
Liquidation Amount of $_________ against receipt of the aggregate
purchase price of such Trust Preferred Securities of $__________,
by the Property Trustee.
If the Underwriters exercise their option to purchase all
or any portion of an additional ____________ Trust Preferred
Securities pursuant to the terms of the Underwriting Agreement,
then an Administrator, on behalf of the Trust, shall by manual or
facsimile signature execute in accordance with Section 503 and
the Property Trustee shall authenticate in accordance with
Section 503 and deliver to the Underwriters, additional Trust
Preferred Securities Certificates, registered in the names
requested by the Underwriters, in an aggregate amount of up to
_______________ additional Trust Preferred Securities having an
aggregate Liquidation Amount of up to $________, against receipt of
the aggregate purchase price of such additional Trust Preferred
Securities of up to $________ by the Property Trustee.
The certificates of authentication to be executed by the
Property Trustee shall be substantially in the forms as set forth
on Exhibits B and C attached hereto.
Section 205 ISSUANCE OF THE TRUST COMMON SECURITIES;
SUBSCRIPTION AND PURCHASE OF [SUBORDINATED] DEBENTURES.
Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrator, on behalf of the Trust, shall by manual
11
or facsimile signature execute or cause to be executed in
accordance with Section 503 and the Property Trustee shall
authenticate in accordance with Section 503 and shall deliver to
the Depositor Trust Common Securities Certificates, registered in
the name of the Depositor, in an aggregate amount of ______
Trust Common Securities having an aggregate Liquidation Amount of
$___________ against receipt of the aggregate purchase price of
such Trust Common Securities of $_________ by the Property Trustee.
Contemporaneously therewith, an Administrator, on behalf of the
Trust, shall subscribe for and purchase from the Depositor the
[Subordinated] Debentures, registered in the name of the Property
Trustee and having an aggregate principal amount equal to $_________,
and, in satisfaction of the purchase price for such [Subordinated]
Debentures, the Property Trustee, on behalf of the Trust, shall
deliver to the Depositor the sum of $_________, (being the sum of
the amounts delivered to the Property Trustee pursuant to (i) the
second sentence of Section 204, and (ii) the first sentence of
this Section 205) and receive on behalf of the Trust such
[Subordinated] Debentures.
If the Underwriters exercise their option to purchase
additional Trust Preferred Securities pursuant to the terms of
the Underwriting Agreement, then an Administrator, on behalf of
the Trust, shall by manual or facsimile signature execute in
accordance with Section 503 and the Property Trustee shall
authenticate and deliver to the Depositor additional Trust Common
Securities Certificates, registered in the name of the Depositor,
in an aggregate amount of up to ______ additional Trust Common
Securities having an aggregate Liquidation Amount of up to $_______
against receipt of the aggregate purchase price of such additional
Trust Common Securities of up to $________ by the Property Trustee.
Contemporaneously therewith, an Administrator, on behalf of the
Trust, shall subscribe for and purchase from the Depositor the
[Subordinated] Debentures, registered in the name of the Property
Trustee and having an aggregate principal amount of up to
$_______, and, in satisfaction of the purchase price for such
[Subordinated] Debentures, the Property Trustee, on behalf of the
Trust, shall deliver to the Depositor an aggregate amount equal to the
sum of the amounts delivered to the Property Trustee pursuant to (i)
the third sentence of Section 204, and (ii) the third sentence of
this Section 205.
Section 206 DECLARATION OF TRUST. The exclusive purposes
and functions of the Trust are to (a) issue and sell Trust
Securities and use the proceeds from such sale to acquire the
[Subordinated] Debentures, and (b) engage in only those other
activities necessary, convenient or incidental thereto. The
Depositor hereby appoints the Trustees as trustees of the Trust,
to have all the rights, powers and duties to the extent set forth
herein, and the Trustees hereby accept such appointment. The
Property Trustee hereby declares that it will hold the Trust
Property in trust upon and subject to the conditions set forth
herein for the benefit of the Trust and the Holders. The
Depositor hereby appoints the Administrators, with such
Administrators having all rights, powers and duties set forth
herein with respect to accomplishing the purposes of the Trust,
and the Administrators hereby accept such appointment; provided,
however, that it is the intent of the parties hereto that such
Administrators shall not be trustees or, to the fullest extent
permitted by law, fiduciaries with respect to the Trust and this
Trust Agreement shall be construed in a manner consistent with
such intent. The Delaware Trustee shall not be entitled to
exercise any powers, nor shall the Delaware Trustee have any of
the duties and responsibilities, of the Property Trustee or the
Administrators set forth herein. The Delaware Trustee shall be
one of the trustees of the Trust for the sole and limited purpose
of fulfilling the requirements of Section 3807 of the Delaware
Business Trust Act and for taking such actions as are required to
be taken by a Delaware trustee under the Delaware Business Trust
Act.
Section 207 AUTHORIZATION TO ENTER INTO CERTAIN
TRANSACTIONS.
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(a) The Trustees and the Administrators shall conduct the
affairs of the Trust in accordance with the terms of this Trust
Agreement. Subject to the limitations set forth in paragraph (b)
of this Section and in accordance with the following provisions
(i) and (ii), the Trustees and the Administrators shall act as
follows:
(i) Each Administrator, acting jointly or
singly, shall:
(1) comply with the Underwriting Agreement regarding
the issuance and sale of the Trust Securities;
(2) assist in compliance with the Securities Act,
applicable State securities or blue sky laws, and the
Trust Indenture Act;
(3) assist in the listing of the Trust Preferred
Securities upon such securities exchange or exchanges
as shall be determined by the Depositor, with the
registration of the Trust Preferred Securities under
the Exchange Act, if required, and the preparation and
filing of all periodic and other reports and other
documents pursuant to the foregoing;
(4) execute the Trust Securities on behalf of the Trust
in accordance with this Trust Agreement;
(5) execute and deliver an application for a taxpayer
identification number for the Trust;
(6) assist in the filing with the Commission, at such
time as determined by the Depositor, any registration
statement under the Securities Act, including any
amendments thereto;
(7) unless otherwise required by the Trust Indenture
Act, execute on behalf of the Trust any documents that
the Administrators have the power to execute pursuant
to this Trust Agreement, including without limitation,
the Debentures Purchase Agreement and the Trust Common
Securities Purchase Agreement and send notices (other
than notices of default) and other information
regarding the Trust Securities and the [Subordinated]
Debentures to the Holders in accordance with
this Trust Agreement; and
(8) take any action incidental to the foregoing as
necessary or advisable to give effect to the terms of
this Trust Agreement.
(ii) The Property Trustee shall have the power and
authority to act on behalf of the Trust with respect to
the following matters:
(1) the establishment of the Payment
Account;
(2) the receipt of the [Subordinated]
Debentures;
(3) the receipt and collection of interest, principal
and any other payments made in respect of the
[Subordinated] Debentures in the Payment Account;
(4) the distribution, through the Paying Agent, of
amounts owed to the Holders in respect of the Trust
Securities;
13
(5) the exercise of all of the rights, powers and
privileges of a holder of the [Subordinated] Debentures
(subject to the terms of this Trust Agreement);
(6) the sending of notices of default and other
information regarding the Trust Securities and the
[Subordinated] Debentures to the Holders in accordance
with this Trust Agreement;
(7) the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
(8) to the extent provided in this Trust Agreement, the
winding-up of the affairs of and liquidation of the
Trust and the preparation, execution and filing of the
certificate of cancellation with the Secretary of State
of the State of ________________ ; and
(9) after an Event of Default (other than under
paragraph (b), (c), (d), or (e) of the definition of
such term if such Event of Default is by or with
respect to the Property Trustee), comply with the
provisions of this Trust Agreement and take any action
to give effect to the terms of this Trust Agreement and
protect and conserve the Trust Property for the benefit
of the Holders (without consideration of the effect of
any such action on any particular Holder);
PROVIDED, HOWEVER, that nothing in this Section
207(a)(ii) shall require the Property Trustee to take any action
that is not otherwise required in this Trust Agreement.
(iii) the Property Trustee shall have none of the duties,
liabilities, powers or the authority of the
Administrators as set forth in Section 207(a)(i).
(b) So long as this Trust Agreement remains in effect, the
Trust (or the Trustees or Administrators acting on behalf of the
Trust) shall not undertake any business, activities or
transactions except as expressly provided herein or contemplated
hereby. In particular, neither the Trustees nor the
administrators shall (i) acquire any investments or engage in any
activities not authorized by this Trust Agreement, (ii) sell,
assign, transfer, exchange, mortgage, pledge, set-off or
otherwise dispose of any of the Trust Property or interests
therein, including to Holders, except as expressly provided
herein, (iii) take any action that would cause the Trust to
become taxable other than as a grantor trust for United States
Federal income tax purposes, (iv) incur any indebtedness for
borrowed money or issue any other debt, or (v) take or consent to
any action that would result in the placement of a Lien on any of
the Trust Property. The Property Trustee shall defend all claims
and demands of all Persons at any time claiming any Lien on any
of the Trust Property adverse to the interest of the Trust or the
Holders in their capacity as Holders.
(c) In connection with the issue and sale of the
Trust Preferred Securities, the Depositor shall have the right
and responsibility to assist the Trust with respect to, or effect
on behalf of the Trust, the following (and any actions taken by
the Depositor in furtherance of the following prior to the date
of this Trust Agreement are hereby ratified and confirmed in all
respects):
(i) the preparation, execution and filing with the
Commission of a registration statement on the appropriate
form under the Securities Act with respect to the Trust
Preferred Securities;
14
(ii) the determination of the states in which to take
appropriate action to qualify or register for sale all or
part of the Trust Preferred Securities and the
determination of any and all such acts, other than
actions that must be taken by or on behalf of the Trust,
and the advice to the Administrators of actions they must
take on behalf of the Trust, and the preparation for
execution and filing of any documents to be executed and
filed by the Trust or on behalf of the Trust, as the
Depositor deems necessary or advisable in order to comply
with the applicable laws of any such States in connection
with the sale of the Trust Preferred Securities;
(iii) the negotiation of the terms of, and the execution
and delivery of, the Underwriting Agreement providing
for the sale of the Trust Preferred Securities; and
(iv) the taking of any other actions necessary or
desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary,
the Administrators and the Property Trustee are authorized and
directed to conduct the affairs of the Trust and to operate the
Trust so that the Trust will not be deemed to be an "investment
company" required to be registered under the Investment Company
Act, and will not be taxable other than as a grantor trust for
the United States Federal income tax purposes and so that the
[Subordinated] Debentures will be treated as indebtedness of the
Depositor for United States Federal income tax purposes. In this
connection, the Administrators, the Property Trustee and the
Holders of Trust Common Securities are authorized to take any
action, not inconsistent with applicable law, the Certificate of
Trust or this Trust Agreement, that the Administrators, Property
Trustee and Holders of Trust Common Securities determine in their
discretion to be necessary or desirable for such purposes, as
long as such action does not adversely affect in any material
respect the interests of the holders of the Outstanding Trust
Preferred Securities. In no event shall the Administrators or the
Trustees be liable to the Trust or the Holders for any failure to
comply with this Section that results from a change in law or
regulations or in the interpretation thereof. It is understood
that (i) by performing its duties and obligations as are
specifically set forth in this Trust Agreement, the Property
Trustee shall be deemed to have complied with the provisions of
the first sentence of this Section 207(d) and (ii) nothing in
this Section 207(d) shall require the Property Trustee to take
any actions other that those specifically required by this Trust
Agreement to be taken by it.
Section 208 ASSETS OF TRUST. The assets of the Trust shall
consist solely of the Trust Property.
Section 209 TITLE TO TRUST PROPERTY. Legal title to all
Trust Property shall be vested at all times in the Property
Trustee (in its capacity as such) and shall be held and
administered by the Property Trustee for the benefit of the Trust
and the Holders in accordance with this Trust Agreement.
ARTICLE III
PAYMENT ACCOUNT
Section 301 PAYMENT ACCOUNT.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and its
agents shall have exclusive control and sole right of
15
withdrawal with respect to the Payment Account for the
purpose of making deposits in and withdrawals from the Payment
Account in accordance with this Trust Agreement. All moneys and
other property deposited or held from time to time in the Payment
Account shall be held by the Property Trustee in the Payment
Account for the exclusive benefit of the Holders and for
distribution as herein provided, including (and subject to) any
priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment
Account, promptly upon receipt, all payments of principal of or
interest on, and any other payments or proceeds with respect to,
the [Subordinated] Debentures. Amounts held in the Payment
Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV
DISTRIBUTION; REDEMPTION
Section 401 DISTRIBUTIONS.
(a) The Trust Securities represent undivided beneficial
interests in the Trust Property, and Distributions (including of
Additional Amounts) will be made on the Trust Securities at the
rate and on the dates that payments of interest (including of
Additional Interest) are made on
the [Subordinated] Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be
cumulative and will accumulate whether or not there are
funds of the Trust available for the payment of
Distributions. Distributions shall accumulate from
__________, 20__, and, except in the event (and to the
extent) that the Depositor exercises its right to defer
the payment of interest on the [Subordinated] Debentures
pursuant to the Indenture, shall be payable quarterly in
arrears on __________,________, _________, and ________
of each year, commencing on _________, 20__. If any date
on which a Distribution is otherwise payable on the Trust
Securities is not a Business Day, then the payment of
such Distribution shall be made on the next succeeding
day that is a Business Day (without any additional
Distributions or other payment in respect of any such
delay), with the same force and effect as if made on the
date on which such payment was originally payable (each
date on which distributions are payable in accordance
with this Section 401(a), a "Distribution Date").
(ii) The Trust Securities shall be entitled to
Distributions payable at a rate of ____% per annum of the
Liquidation Amount of the Trust Securities. The amount of
Distributions payable for any period less than a full
Distribution period shall be computed on the basis of a
360-day year of twelve 30-day months and the actual
number of days elapsed in a partial month in a period.
Distributions payable for each full Distribution period
will be computed by dividing the rate per annum by four.
The amount of Distributions payable for any period shall
include any Additional Amounts in respect of such period.
(iii) So long as no Debenture Event of Default has
occurred and is continuing, the Depositor has the right
under the Indenture to defer the payment of interest on
the [Subordinated] Debentures at any time and from time
to time for a period not exceeding 20 consecutive
quarterly periods (an "Extension Period"), during which
Extension Periods the Depositor shall have the right to
make partial payments of interest on any Interest Payment
Date (as defined in the Indenture) and at the end of
16
which the Depositor shall pay all interest then accrued
and unpaid, provided that no Extension Period may extend
beyond ___________________ or end on a day other than an
Interest Payment Date. As a consequence of any such
deferral, quarterly Distributions on the Trust Securities
by the Trust will also be deferred (and the amount of
Distributions to which Holders of the Trust Securities
are entitled will accumulate additional Distributions
thereon at a rate of _______% per annum, compounded
quarterly from the relevant payment date for such
Distributions, computed on the basis of a 360-day year of
twelve 30-day months and the actual days elapsed in a
partial month in such period). Additional Distributions
payable for each full Distribution period will be
computed by dividing the rate per annum by four. The term
"Distributions" as used in this Section 401 shall include
any such additional Distributions provided pursuant to
this Section 401(a)(iii).
(iv) Distributions on the Trust Securities shall be made
by the Property Trustee from the Payment Account and
shall be payable on each Distribution Date only to the
extent that the Trust has funds then on hand and
available in the Payment Account for the payment of such
Distributions.
(b) Distributions on the Trust Securities with
respect to a Distribution Date shall be payable to the Holders
thereof as they appear on the Securities Register for the Trust
Securities at the close of business on the relevant record date,
which shall be at the close of business on the fifteenth day
(whether or not a Business Day) next preceding the relevant
Distribution Date.
Section 402 REDEMPTION.
(a) On each Debenture Redemption Date and on the stated
maturity of the [Subordinated] Debentures, the Trust will be
required to redeem a Like Amount of Trust Securities at the
Redemption Price.
(b) Notice of redemption shall be given by the
Property Trustee by first-class mail, postage prepaid, mailed not
less than 30 nor more than 60 days prior to the Redemption Date
to each Holder of Trust Securities to be redeemed, at such
Holder's address appearing in the Security Register. All notices
of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number or CUSIP numbers of the
Trust Preferred Securities affected;
(iv) if less than all the Outstanding Trust Securities
are to be redeemed, the identification and the total
Liquidation Amount of the particular Trust Securities to
be redeemed;
(v) that on the Redemption Date the Redemption Price will
become due and payable upon each such Trust Security to
be redeemed and that Distributions thereon will cease to
accumulate on and after said date, except as provided in
Section 402(e) below; and
(vi) the place or places where Trust Securities are to be
surrendered for the payment of the Redemption Price.
17
(c) The Trust in issuing the Trust Securities may use
"CUSIP" or "private placement" numbers (if then generally in
use), and, if so, the Property Trustee shall indicate the "CUSIP"
or "private placement" numbers of the Trust Securities in notices
of redemption and related materials as a convenience to Holders;
provided, that any such notice may state that no representation
is made as to the correctness of such numbers either as printed
on the Trust Securities or as contained in any notice of
redemption and related material.
(d) The Trust Securities redeemed on each Redemption
Date shall be redeemed at the Redemption Price with the
applicable proceeds from the contemporaneous redemption of
[Subordinated] Debentures. Redemptions of the Trust Securities
shall be made and the Redemption Price shall be payable on each
Redemption Date only to the extent that the Trust has funds then
on hand and available in the Payment Account for the payment of
such Redemption Price.
(e) If the Trust gives a notice of redemption in
respect of any Trust Preferred Securities, then, by 10:00 a.m.,
New York City time, on the Redemption Date, the Depositor shall
deposit sufficient funds with the Property Trustee to pay the
Redemption Price. If such deposit has been made, then by 12:00
noon, New York City time, on the Redemption Date, subject to
Section 402(c), the Property Trustee will, with respect to Trust
Preferred Securities held in global form, irrevocably deposit
with the Depositary for such Trust Preferred Securities, to the
extent available therefor, funds sufficient to pay the applicable
Redemption Price and will give such Depositary irrevocable
instructions and authority to pay the Redemption Price to the
Holders of the Trust Preferred Securities. With respect to Trust
Preferred Securities that are not held in global form, the
Property Trustee, subject to Section 402(c), will irrevocably
deposit with the Paying Agent, to the extent available therefor,
funds sufficient to pay the applicable Redemption Price and will
give the Paying Agent irrevocable instructions and authority to
pay the Redemption Price to the Holders of the Trust Preferred
Securities upon surrender of their Trust Preferred Securities
Certificates. Notwithstanding the foregoing, Distributions
payable on or prior to the Redemption Date for any
Trust Securities called for redemption shall be payable to the
Holders of such Trust Securities as they appear on the Securities
Register for the Trust Securities on the relevant record dates
for the related Distribution Dates. If notice of redemption shall
have been given and funds deposited as required, then, upon the
date of such deposit, all rights of Holders holding Trust
Securities so called for redemption will cease, except the right
of such Holders to receive the Redemption Price and any
Distribution payable in respect of the Trust Securities on or
prior to the Redemption Date, but without interest, and such
Trust Securities will cease to be Outstanding. In the event that
any date on which any applicable Redemption Price is payable is
not a Business Day, then payment of the applicable Redemption
Price payable on such date will be made on the next succeeding
day that is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such
Business Day falls in the next calendar year, such payment will
be made on the immediately preceding Business Day, in each case,
with the same force and effect as if made on such date. In the
event that payment of the Redemption Price in respect of any
Trust Securities called for redemption is improperly withheld or
refused and not paid either by the Trust or by the Depositor
pursuant to the Guarantee, Distributions on such Trust Securities
will continue to accumulate, as set forth in Section 401 and in
accordance with the continued accrual of interest on the [Subordinated]
Debentures, from the Redemption Date originally established by
the Trust for such Trust Securities to the date such applicable
Redemption Price is actually paid, in which case the actual
payment date will be the date fixed for redemption for purposes
of calculating the applicable Redemption Price.
(f) Subject to Section 403(a), if less than all the
Outstanding Trust Securities are to be redeemed on a Redemption
Date, then the aggregate Liquidation Amount of such Trust
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Securities to be redeemed shall be allocated pro rata to the
Trust Common Securities and the Trust Preferred Securities based
on the relative Liquidation Amounts of such classes. The amount
of premium, if any, paid by the Depositor upon the redemption of
all or any part of the [Subordinated] Debentures to be repaid or
redeemed on a Redemption Date shall be allocated to the redemption
pro rata of the Trust Preferred Securities and the Trust Common
Securities. The particular Trust Preferred Securities to be redeemed
shall be selected by the Property Trustee by such method (including,
without limitation, on a pro rata basis based on their respective
Liquidation mounts or by lot) as the Property Trustee shall deem
fair and appropriate, which may provide for the selection for
redemption of portions (equal to $_____ or integral multiples
thereof) of the Liquidation Amount of Trust Preferred Securities of a
denomination larger than $______, not more than 60 days prior to
the Redemption Date from the Outstanding Trust Preferred
Securities not previously called for redemption, or if the Trust
Preferred Securities are then held in the form of a Global Trust
Preferred Security, by the Depositary in accordance with the customary
procedures for the Depositary. In any such proration, the Property
Trustee shall make such adjustments so that any Trust Preferred
Security to be redeemed shall, after such redemption, be in an
authorized denomination. The Property Trustee shall promptly notify
the Securities Registrar in writing of the Trust Preferred Securities
selected for redemption and, in the case of any Trust Preferred
Securities selected for partial redemption, the Liquidation Amount
thereof to be redeemed. For all purposes of this Trust Agreement,
unless the context otherwise requires, all provisions relating to
the redemption of Trust Preferred Securities shall relate, in the
case of any Trust Preferred Securities redeemed or to be redeemed
only in part, to the portion of the aggregate Liquidation Amount
of Trust Preferred Securities that has been or is to be redeemed.
Section 403 SUBORDINATION OF TRUST COMMON SECURITIES.
(a) Payment of Distributions (including Additional Amounts,
if applicable) on, the Redemption Price of, and the Liquidation
Distribution in respect of, the Trust Securities, as applicable,
shall be made, subject to Section 402(e), pro rata among the
Trust Common Securities and the Trust Preferred Securities based
on the Liquidation Amount of such Trust Securities; provided,
however, that if on any Distribution Date or Redemption Date any
Event of Default resulting from a Debenture Event of Default in
Sections 8.01(a)(1) or (2) of the Indenture shall have occurred
and be continuing, no payment of any Distribution (including any
Additional Amounts) on, Redemption Price of, or Liquidation
Distribution in respect of, any Trust Common Security, and no
other payment on account of the redemption, liquidation or other
acquisition of Trust Common Securities, shall be made unless
payment in full in cash of all accumulated and unpaid
Distributions (including any Additional Amounts) on all
Outstanding Trust Preferred Securities for all Distribution
periods terminating on or prior thereto, or, in the case of
payment of the Redemption Price, the full amount of such
Redemption Price on all Outstanding Trust Preferred Securities
then called for redemption, or in the case of payment of the
Liquidation Distribution, the full amount of such Liquidation
Distribution on all Outstanding Trust Preferred Securities, shall
have been made or provided for, and all funds immediately
available to the Property Trustee shall first be applied to the
payment in full in cash of all Distributions (including any
Additional Amounts) on, or the Redemption Price of, or
Liquidation Distribution in respect of, Trust Preferred
Securities then due and payable. The existence of an Event of
Default does not entitle the Holders of Trust Preferred
Securities to accelerate the
maturity thereof.
(b) In the case of the occurrence of any Event of
Default resulting from any Debenture Event of Default, the Holder
of the Trust Common Securities shall be deemed to have waived any
right to act with respect to any such Event of Default under this
Trust Agreement until the effects of all such Events of Default
with respect to the Trust Preferred Securities have been
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cured, waived or otherwise eliminated. Until all such Events of
Default under this Trust Agreement with respect to the Trust
Preferred Securities have been so cured, waived or otherwise
eliminated, the Property Trustee shall act solely on behalf of
the Holders of the Trust Preferred Securities and not on behalf
of the Holder of the Trust Common Securities, and only the
Holders of the Trust Preferred Securities will have the right to
direct the Property Trustee to act on their behalf.
Section 404 PAYMENT PROCEDURES. Payments of Distributions
(including any Additional Amounts) in respect of the Trust
Preferred Securities shall be made by check mailed to the address
of the Person entitled thereto as such address shall appear on
the Securities Register or, if the Trust Preferred Securities are
held by the Depositary, such Distributions shall be made to the
Depositary in immediately available funds, which will credit the
relevant accounts on the applicable Distribution Dates. Payments in
respect of the Trust Common Securities shall be made in such manner
as shall be mutually agreed between the Property Trustee and the
Holder of the Trust Common Securities.
Section 405 TAX RETURNS AND REPORTS. The Administrators
shall prepare (or cause to be prepared), at the Depositor's
expense, and file all United States Federal, State and local tax
and information returns and reports required to be filed by or in
respect of the Trust. In this regard, the Administrators shall
(a) prepare and file (or cause to be prepared and filed) all
Internal Revenue Service forms required to be filed in respect of
the Trust in each taxable year of the Trust and (b) prepare and
furnish (or cause to be prepared and furnished) to each Holder
all Internal Revenue Service forms required to be provided by the
Trust. The Administrators shall provide the Depositor and the
Property Trustee with a copy of all such returns and reports
promptly after such filing or furnishing. The Property Trustee
shall comply with United States Federal withholding and backup
withholding tax laws and information reporting requirements with
respect to any payments to Holders under the Trust Securities.
On or before December 15 of each year during which any
Trust Preferred Securities are outstanding, the Administrators
shall furnish to the Paying Agent such information as may be
reasonably requested by the Property Trustee in order that the
Property Trustee may prepare the information which it is required
to report for such year on Internal Revenue Service Forms 1096
and 1099 pursuant to Section 6049 of the Code. Such information
shall include the amount of original issue discount includable in
income for each outstanding Trust Preferred Security during such
year, if any.
Section 406 PAYMENT OF TAXES, DUTIES, ETC. OF THE TRUST.
Upon receipt under the [Subordinated] Debentures of Additional
Sums and the written direction of any of the Administrators, the
Property Trustee shall promptly pay any taxes, duties or
governmental charges of whatsoever nature (other than withholding
taxes) imposed on the Trust by the United States or any other
taxing authority.
Section 407 PAYMENTS UNDER INDENTURE OR PURSUANT TO DIRECT
ACTIONS. Amount payable hereunder to any Holder of Trust
Preferred Securities shall be reduced by the amount of any
corresponding payment such Holder has directly received pursuant
to Section 8.04 of the Indenture or Section 513 of this Trust
Agreement.
Section 408 LIABILITY OF THE HOLDER OF TRUST COMMON
SECURITIES. The Holder of Trust Common Securities shall be liable
for the debts and obligations of the Trust as set forth in
Section 9.06 of the Indenture regarding allocation of expenses.
20
ARTICLE V
TRUST SECURITIES CERTIFICATES
Section 501 INITIAL OWNERSHIP. Upon the creation of the
Trust and the contribution by the Depositor pursuant to Section
203 and until the issuance of the Trust Securities, and at any
time during which no Trust Securities are Outstanding, the
Depositor shall be the sole beneficial owner of the Trust.
Section 502 THE TRUST SECURITIES CERTIFICATES.
(a) The Trust Preferred Securities Certificates shall be
issued in fully registered form in denominations of $_____
Liquidation Amount or integral multiples thereof. The Trust
Securities Certificates shall be executed on behalf of the Trust
by manual or facsimile signature of at least one Administrator.
Trust Securities Certificates bearing the manual or facsimile
signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf
of the Trust, shall be validly issued and entitled to the
benefits of this Trust Agreement, notwithstanding that such individuals
or any of them shall have ceased to be so authorized prior to the
delivery of such Trust Securities Certificates or did not hold
such offices at the date of delivery of such Trust Securities
Certificates. A transferee of a Trust Securities Certificate
shall become a Holder, and shall be entitled to the rights and
subject to the obligations of a Holder hereunder, upon due registration
of such Trust Securities Certificate in such transferee's name pursuant
to Section 505.
(b) Upon their original issuance, Trust Preferred
Securities Certificates representing Global Trust Preferred
Securities shall be issued in the form of one or more Global
Trust Preferred Securities Certificates registered in the name of
Cede as the Depositary's nominee and deposited with or on behalf
of the Depositary for credit by the Depositary to the respective
accounts of the Owners thereof (or such other accounts as they
may direct). Except as set forth herein, record ownership of the
Global Trust Preferred Securities may be transferred, in whole or
in part, only to the Depositary, another nominee of Depositary or
to a successor of the Depositary or its nominee.
(c) A single Trust Common Securities Certificate
representing the Trust Common Securities shall be issued to the
Depositor in the form of a definitive Trust Common Securities
Certificate.
Section 503 EXECUTION AND DELIVERY OF TRUST SECURITIES
CERTIFICATES. At the Closing Time, and on the date, if any, on which
the Underwriters exercise their option to purchase additional Trust
Preferred Securities pursuant to the terms of the Underwriting
Agreement, as applicable, an Administrator shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as
provided in Sections 204 and 205, to be executed on behalf of the
Trust and delivered to the Property Trustee and upon such
delivery the Property Trustee shall authenticate such Trust
Securities Certificates and deliver such Trust Securities
Certificates upon the written order of the Trust, executed by an
Administrator thereof, without further corporate action by the
Depositor, in authorized denominations. Only such Trust
Securities Certificates as shall bear thereon a certificate of
authentication substantially in the form provided for herein
executed by the Property Trustee by manual signature of an
authorized officer thereof shall be entitled to the benefits of
this Trust Agreement or be valid or obligatory for any purpose.
Section 504 GLOBAL TRUST PREFERRED SECURITIES.
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(a) The Global Trust Preferred Securities issued under this
Trust Agreement shall be registered in the name of the nominee of
the Depositary and delivered to the Property Trustee as custodian
therefor, and such Global Trust Preferred Security shall
constitute a single Trust Preferred Security for all purposes of
this Trust Agreement.
(b) Notwithstanding any other provision of this Trust
Agreement, except as contemplated by the provisions of paragraph
(c) below, unless the terms of a Global Trust Preferred Security
expressly permit such Global Trust Preferred Security to be
exchanged in whole or in part for individual Trust Preferred
Securities, a Global Trust Preferred Security may be transferred,
in whole but not in part and in the manner provided in Section 505,
only to a nominee of the Depositary for such Global Trust
Preferred Security, or to the Depositary, or to a successor
Depositary for such Global Trust Preferred Security selected or
approved by the Depositor, or to a nominee of such successor
Depositary.
(c) (1) If at any time the Depositary for a Global Trust
Preferred Security notifies the Depositor that it is
unwilling or unable to continue as the Depositary for
such Global Trust Preferred Security or if at any time
the Depositary for the Trust Preferred Securities shall
no longer be eligible or in good standing under the
Exchange Act, or other applicable statute or regulation,
the Depositor shall appoint a successor Depositary with
respect to such Global Trust Preferred Security. If a
successor Depositary for such Global Trust Preferred
Security is not appointed by the Depositor within 90 days
after the Depositor receives such notice or becomes aware
of such ineligibility, an Administrator will execute, and
the Property Trustee will authenticate and deliver, Trust
Preferred Securities in the form of definitive
certificates of like tenor and terms ("Definitive Trust
Preferred Securities") in a Liquidation Amount equal to
the Liquidation Amount of the Global Trust Preferred
Security in exchange for such Global Trust Preferred
Security. Such Definitive Trust Preferred Securities will
be issued in the form of a Trust Preferred Securities
Certificate or Certificates to and registered in the name
of such Person or Persons as are specified by the
Depositary.
(2) The Trust may at any time and in its sole discretion
determine that the Trust Preferred Securities issued or
issuable in the form of one or more Global Trust
Preferred Securities shall no longer be represented by
such Global Trust Preferred Security or Securities. In
any such event an Administrator will execute, and the
Property Trustee will authenticate and deliver without
service charge to each Person specified by the Depositary
a Trust Preferred Securities Certificate of like tenor in
a Liquidation Amount equal to the Liquidation Amount of
such Global Trust Preferred Security, or the aggregate
Liquidation Amount of such Global Trust Preferred
Securities, in exchange for such Global Trust Preferred
Security or Securities.
(3) Within seven days after the occurrence of an Event of
Default with respect to the Global Trust Preferred
Securities, the Administrator shall execute, and the
Property Trustee shall authenticate and deliver without
service charge to each Person specified by the Depository
a Trust Preferred Securities Certificate of like tenor in
a Liquidation Amount equal to the Liquidation Amount of
such Global Trust Preferred Security, or the aggregate
Liquidation Amount of such Global Trust Preferred
Securities in exchange for such Global Trust Preferred
Security or Securities.
(4) In any exchange provided for in any of the preceding
subparagraphs, an Administrator shall execute and the
Property Trustee shall authenticate and deliver
22
Trust Preferred Securities Certificates in authorized
denominations. Upon the exchange of the entire
Liquidation Amount of a Global Trust Preferred Security
for Definitive Trust Preferred Securities, such Global
Trust Preferred Security shall be canceled by the
Property Trustee. Definitive Trust Preferred Securities
issued in exchange for a Global Trust Preferred Security
pursuant to this Section shall be registered in such
names and in such authorized denominations as the
Depositary for such Global Trust Preferred Security,
acting pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the
Property Trustee. Provided that the Depositor and the
Property Trustee have so agreed, the Property Trustee
shall deliver a Trust Preferred Securities Certificate to
the Persons in whose names the Trust Preferred Securities
are so to be registered.
(5) Any endorsement of a Global Trust Preferred Security
to reflect the Liquidation Amount thereof, or any
increase or decrease in such Liquidation Amount, or
changes in the rights of Holders of Outstanding Trust
Preferred Securities represented thereby shall be made in
such manner and by such Person or Persons as shall be
specified in or pursuant to any applicable letter of
representations or other arrangement entered into with,
or procedures of, the Depositary with respect to such
Global Trust Preferred Security. Subject to the
provisions of Section 503, the Property Trustee shall
deliver and redeliver any such Global Trust Preferred
Security in the manner and upon instructions given by the
Person or Persons specified in or pursuant to any
applicable letter of representations or other arrangement
entered into with, or procedures of, the Depositary with
respect to such Global Trust Preferred Security.
(6) The Depositary or, if there be one, its nominee,
shall be the Holder of a Global Trust Preferred Security
for all purposes under this Trust Agreement; and
beneficial owners with respect to such Global Trust
Preferred Security shall hold their interests
pursuant to applicable procedures of such Depositary. The
Depositor, the Property Trustee and the Trust Preferred
Security Registrar shall be entitled to deal with such
Depositary for all purposes of this Trust Agreement
relating to such Global Trust Preferred Security
(including the payment of any Distributions and the
giving of instructions or directions by or to the
beneficial owners of such Global Trust Preferred Security
as the sole Holder of such Global Trust Preferred
Security) and shall have no obligations to the beneficial
owners thereof (including any direct or indirect
participants in such Depositary). None of the Depositor,
the Property Trustee, any Paying Agent or the Securities
Registrar shall have any responsibility or liability for
any aspect of the records relating to or payments made on
account of beneficial ownership interests of a Global
Trust Preferred Security in or pursuant to any applicable
letter of representations or other arrangement entered
into with, or procedures of, the Depositary with respect
to such Global Trust Preferred Security or for
maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
Section 505 REGISTRATION OF TRANSFER AND EXCHANGE
GENERALLY; CERTAIN TRANSFERS AND EXCHANGES; TRUST PREFERRED
SECURITIES CERTIFICATES. The Property Trustee shall keep or cause
to be kept at its Corporate Trust Office a register or registers
for the purpose of registering Trust Preferred Securities Certificates
and transfers and exchanges of Trust Preferred Securities Certificates
in which the registrar and transfer agent with respect to the Trust
Preferred Securities (the "Securities Registrar"), subject to
such reasonable regulations as it may prescribe, shall provide
for the registration of Trust Preferred Securities Certificates and
Trust Common Securities Certificates (subject to Section 511 in the
23
case of Trust Common Securities Certificates) and registration of
transfers and exchanges of Trust Preferred Securities
Certificates as herein provided. Such register is herein
sometimes referred to as the "Securities Register." The Property
Trustee is hereby appointed Securities Registrar for the purpose
of registering Trust Preferred Securities and transfers of Trust
Preferred Securities as herein provided.
Upon surrender for registration of transfer of any Trust
Preferred Security Certificate at the offices or agencies of the
Property Trustee designated for that purpose an Administrator
shall execute, and the Property Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees,
one or more new Trust Preferred Securities Certificates of any
authorized denominations of like tenor and aggregate Liquidation
Amount and bearing such restrictive legends as may be required by
this Trust Agreement.
At the option of the Holder, Trust Preferred Securities
Certificates may be exchanged for other Trust Preferred
Securities Certificates of any authorized denominations, of like
tenor and aggregate Liquidation Amount and bearing such
restrictive legends as may be required by this Trust Agreement,
upon surrender of the Trust Preferred Securities to be exchanged
at such office or agency. Whenever any Trust Preferred Securities
are so surrendered for exchange, an Administrator shall execute
and the Property Trustee shall authenticate and deliver the Trust
Preferred Securities that the Holder making the exchange is entitled
to receive.
All Trust Preferred Securities Certificates issued upon any
transfer or exchange of Trust Preferred Securities shall be the
valid obligations of the Trust, evidencing the same debt, and
entitled to the same benefits under this Trust Agreement, as the
Trust Preferred Securities Certificates surrendered upon such
transfer or exchange.
Every Trust Preferred Securities Certificate presented or
surrendered for transfer or exchange shall (if so required by the
Property Trustee) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the
Property Trustee and the Securities Registrar, duly executed by
the Holder thereof or such Holder's attorney duly authorized in
writing.
No service charge shall be made to a Holder for any
transfer or exchange of Trust Preferred Securities, but the
Property Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Trust Preferred
Securities.
Neither the Trust nor the Property Trustee shall be
required, pursuant to the provisions of this Section, (x) to
issue, register the transfer of or exchange any Trust Preferred
Security during a period beginning at the opening of business 15
days before the day of mailing of a notice of redemption of Trust
Preferred Securities pursuant to Article IV and ending at the
close of business on the day of mailing of such notice of
redemption, or (y) to register the transfer of or exchange any
Trust Preferred Security so selected for redemption in whole or
in part, except, in the case of any such Trust Preferred Security
to be redeemed in part, any portion thereof not to be redeemed.
None of the Trust, the Property Trustee, the Delaware
Trustee, any Paying Agent or the Securities Registrar will have
any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership
interests of a Global Trust Preferred Security or for
maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
24
Section 506 MUTILATED, DESTROYED, LOST OR STOLEN TRUST
SECURITIES CERTIFICATES. If (a) any mutilated Trust Securities
Certificate shall be surrendered to the Securities Registrar,
or if the Securities Registrar shall receive evidence to its
satisfaction of the destruction, loss or theft of any Trust Securities
Certificate and (b) there shall be delivered to the Securities
Registrar and the Administrators such security or indemnity as
may be required by them to save each of them harmless, then in
the absence of notice that such Trust Securities Certificate
shall have been acquired by a bona fide purchaser, the
Administrators, or any one of them, on behalf of the Trust shall
execute and make available for delivery, and the Property Trustee
shall authenticate, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Trust Securities
Certificate, a new Trust Securities Certificate of like class,
tenor and denomination.
Notwithstanding the foregoing, in case any such mutilated,
destroyed, lost or stolen Trust Securities Certificate has become
or is about to become due and payable, the Trust, in its
discretion (by an Administrator) may, instead of issuing a new
Trust Securities Certificate, pay such Trust Securities
Certificate.
In connection with the issuance of any new Trust Securities
Certificate under this Section, the Administrators or the
Securities Registrar may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed
in connection therewith.
Any duplicate Trust Securities Certificate issued pursuant
to this Section shall constitute conclusive evidence of an
undivided beneficial interest in the assets of the Trust
corresponding to that evidenced by the lost, stolen or destroyed
Trust Securities Certificate, as if originally issued, whether or
not the lost, stolen or destroyed Trust Securities Certificate
shall be found at any time.
The provisions of this Section 506 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement of mutilated, destroyed, lost or
stolen Trust Securities Certificates.
Section 507 PERSONS DEEMED HOLDERS. Prior to due
presentment of a Trust Preferred Securities Certificate for
registration of transfer, the Trustees, the Administrators or the
Securities Registrar shall treat the Person in whose name any
Trust Securities are issued as the owner of such Trust Securities
for the purpose of receiving Distributions and for all other
purposes whatsoever (subject to the record date provisions
hereof), and none of the Trustees, the Administrators nor the
Securities Registrar shall be bound by any notice to the
contrary.
Section 508 ACCESS TO LIST OF HOLDERS' NAMES AND ADDRESSES.
Semiannually, not later than _______________ and _______________
in each year, commencing with
the year 200_, and at such other times as the Property Trustee
may request in writing, the Depositor shall furnish or cause to
be furnished to the Property Trustee information as to the names
and addresses of the Holders, and the Property Trustee shall
preserve such information and similar information received by it
in any other capacity and afford to the Holders access to
information so preserved by it, all to such extent, if any, and
in such manner as shall be required by the Trust Indenture Act;
provided, however, that no such list need be furnished so long as
the Property Trustee shall be the Securities Registrar. Every
holder of Trust Securities by receiving and holding the same,
agrees with the Depositor and the Property Trustee that neither
the Depositor nor the Property Trustee nor any agent of either of
them shall be held accountable by reason of the disclosure of any
such information as to the names and addresses of the Holders of
Trust Securities in accordance with Section 312 of the Trust
Indenture Act, or any successor
25
section of such Act, regardless of the source from which such
information was derived, and that the Property Trustee shall not
be held accountable by reason of mailing any material pursuant
to a request made under Section 312(b) of the Trust Indenture
Act, or any successor section of such Act.
Section 509 MAINTENANCE OF OFFICE OR AGENCY. The Property
Trustee shall designate, with the consent of the Administrators,
which consent shall not be unreasonably withheld, an office or
offices or agency or agencies where Trust Preferred Securities
Certificates may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Trustees in
respect of the Trust Securities Certificates may be served. The
Property Trustee initially designates its Corporate Trust Office
[ ], Attention: Corporate Trustee Administration
Department, as its corporate trust office for such purposes.
The Property Trustee shall give prompt written notice to the
Depositor, the Administrators and to the Holders of any change in
the location of the Securities Register or any such office or
agency.
Section 510 APPOINTMENT OF PAYING AGENT. The Paying Agent
shall make Distributions to Holders from the Payment Account and
shall report the amounts of such Distributions to the Property
Trustee and the Administrators. Any Paying Agent shall have the
revocable power to withdraw funds from the Payment Account solely
for the purpose of making the Distributions referred to above.
The Property Trustee may revoke such power and remove any Paying
Agent in its sole discretion. The Paying Agent shall initially be
the Property Trustee. Any Person acting as Paying Agent shall be
permitted to resign as Paying Agent upon 30 days' written notice
to the Administrators, and the Property Trustee. In the event
that the Property Trustee shall no longer be the Paying Agent or
a successor Paying Agent shall resign or its authority to act be
revoked, the Property Trustee shall appoint a successor (which
shall be a bank or trust company) that is reasonably acceptable
to the Administrators to act as Paying Agent. Such successor
Paying Agent or any additional Paying Agent appointed by the
Property Trustee shall execute and deliver to the Trustees an
instrument in which such successor Paying Agent or additional
Paying Agent shall agree with the Trustees that as Paying Agent,
such successor Paying Agent or additional Paying Agent will hold
all sums, if any, held by it for payment to the Holders in trust
for the benefit of the Holders entitled thereto until such sums
shall be paid to such Holders. The Paying Agent shall return all
unclaimed funds to the Property Trustee and upon removal of a
Paying Agent such Paying Agent shall also return all funds in its
possession to the Property Trustee. The provisions of Sections
801, 803 and 806 herein shall apply to the Bank also in its role
as Paying Agent, for so long as the Bank shall act as Paying
Agent and, to the extent applicable, to any other paying agent
appointed hereunder. Any reference in this Trust Agreement to the
Paying Agent shall include any co-paying agent chosen by the
Property Trustee unless the context requires otherwise.
Section 511 OWNERSHIP OF TRUST COMMON SECURITIES BY
DEPOSITOR. At each Closing Time, the Depositor shall acquire and
retain beneficial and record ownership of the Trust Common Securities.
Neither the Depositor nor any successor Holder of the Trust Common
Securities may transfer less than all the Trust Common Securities,
and the Depositor or any such successor Holder may transfer the Trust
Common Securities only (i) in connection with a consolidation or
merger of the Depositor into another entity or any conveyance,
transfer or lease by the Depositor of its properties and assets
substantially as an entirety to any Person, pursuant to Section
12.01 of the Indenture, or (ii) to an Affiliate of the Depositor
in compliance with applicable law (including the Securities Act
and applicable State securities and blue sky laws); provided that
any such transfer shall be subject to the condition that the
transferor shall
26
have obtained (A) either a ruling from the Internal Revenue
Service or an unqualified written opinion addressed to the Trust
and delivered to the Trustees of nationally recognized
independent tax counsel experienced in such matters to the effect
that such transfer will not (1) cause the Trust to be treated as
issuing a class of interests in the Trust differing from the
class of interests represented by the Trust Common Securities
originally issued to the Depositor, (2) result in the Trust
acquiring or disposing of, or being deemed to have acquired or
disposed of, an asset, or (3) result in or cause the Trust to be
treated as anything other than a grantor trust for United States
Federal income tax purposes and (B) an unqualified written opinion
addressed to the Trust and delivered to the Trustees of a
nationally recognized independent counsel experienced in such
matters that such transfer will not cause the Trust to be an
"investment company" or controlled by an "investment company"
that is required to be registered under the Investment Company
Act. To the fullest extent permitted by law, any attempted
transfer of the Trust Common Securities, other than as set forth
in the immediately preceding sentence, shall be void. The
Administrators shall cause each Trust Common Securities
Certificate issued to the Depositor to contain a legend stating
"THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE DEPOSITOR OR
AN AFFILIATE OF THE DEPOSITOR IN COMPLIANCE WITH APPLICABLE LAW
AND SECTION 511 OF THE TRUST AGREEMENT."
Section 512 NOTICES TO DEPOSITARY. To the extent that a
notice or other communication to the Holders is required under
this Trust Agreement, with respect to Trust Preferred Securities
represented by Global Trust Preferred Securities Certificates,
the Administrators and the Trustees shall give all such notices
and communications specified herein to be given to the
Depositary, and shall have no obligations to the Owners.
Section 513 RIGHTS OF HOLDERS.
(a) The legal title to the Trust Property is vested
exclusively in the Property Trustee (in its capacity as such) in
accordance with Section 209, and the Holders shall not have any
right or title therein other than the undivided beneficial
ownership interest in the assets of the Trust conferred by their
Trust Securities and they shall have no right to call for any
partition or division of property, profits or rights of the Trust
except as described below. The Trust Securities shall be personal
property giving only the rights specifically set forth therein
and in this Trust Agreement. The Trust Securities shall have no
preemptive or similar rights and when issued and delivered to
Holders against payment of the purchase price therefor, as
provided herein, will be fully paid and nonassessable by the
Trust. Except as otherwise provided in Section 408, the Holders
of the Trust Securities, in their capacities as such, shall be
entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under
the General Corporation Law of the State of Delaware.
(b) For so long as any Trust Preferred Securities remain
Outstanding, if, upon a Debenture Event of Default, the Debenture
Trustee fails or the holders of not less than 33% in principal
amount of the outstanding [Subordinated] Debentures fail to
declare the principal of all of the [Subordinated] Debentures to
be immediately due and payable, the Holders of at least 33% in
Liquidation Amount of the Trust Preferred Securities then
Outstanding shall have such right to make such declaration by a
notice in writing to the Property Trustee, the Depositor and the
Debenture Trustee.
At any time after such a declaration of acceleration with respect
to the [Subordinated] Debentures has been made and before a
judgment or decree for payment of the money due has been obtained
by the Debenture Trustee as provided in the Indenture, the
Holders of a Majority in Liquidation Amount of the Trust
Preferred Securities, by written notice to the Property
27
Trustee, the Depositor and the Debenture Trustee, may rescind and
annul such declaration and its consequences
(i) the Depositor has paid or deposited with the
Debenture Trustee a sum sufficient to pay
(1) all overdue installments of interest on all of the
[Subordinated] Debentures,
(2) any accrued Additional Interest on all of the
[Subordinated] Debentures,
(3) the principal of any [Subordinated] Debentures
which have become due otherwise than by such
declaration of acceleration and interest and Additional
Interest thereon at the rate borne by the
[Subordinated] Debentures, and
(4) all sums paid or advanced by the Debenture Trustee
under the Indenture and the reasonable compensation,
expenses, disbursements and advances of the Debenture
Trustee and the Property Trustee, their agents and
counsel; and
(ii) all Debenture Events of Default, other than the non-
payment of the principal of the [Subordinated] Debentures
which has become due solely by such acceleration, have
been cured or waived as provided in Section 8.07 of the
Indenture.
The Holders of at least a Majority in Liquidation Amount of
the Trust Preferred Securities may, on behalf of the Holders of
all the Trust Preferred Securities, waive any past default under
the Indenture, except a default in the payment of principal or
interest (unless such default has been cured and a sum sufficient
to pay all matured installments of interest and principal due
otherwise than by acceleration has been deposited with the
Debenture Trustee) or a default in respect of a covenant or
provision which under the Indenture cannot be modified or amended
without the consent of the holder of each outstanding
[Subordinated] Debentures. No such rescission shall affect any
subsequent default or impair any right consequent thereon.
Upon receipt by the Property Trustee of written
notice declaring such an acceleration, or rescission and
annulment thereof, by Holders of the Trust Preferred Securities
all or part of which is represented by Global Trust Preferred
Securities, a record date shall be established for determining
Holders of Outstanding Trust Preferred Securities entitled to
join in such notice, which record date shall be at the close of
business on the day the Property Trustee receives such notice.
The Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to join in such
notice, whether or not such Holders remain Holders after such
record date; provided, that, unless such declaration of
acceleration, or rescission and annulment, as the case may be,
shall have become effective by virtue of the requisite percentage
having joined in such notice prior to the day which is 90 days
after such record date, such notice of declaration of
acceleration, or rescission and annulment, as the case may be,
shall automatically and without further action by any Holder be
canceled and of no further effect. Nothing in this paragraph
shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new written notice of
declaration of acceleration, or rescission and annulment thereof,
as the case may be, that is identical to a written notice which
has been canceled pursuant to the proviso to the preceding
sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 513(b).
(c) For so long as any Trust Preferred Securities
remain Outstanding, to the fullest extent permitted by law and
subject to the terms of this Trust Agreement and the Indenture,
upon a Debenture Event of Default specified in Sections
8.01(a)(1) or (2) of the Indenture, any
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Holder of Trust Preferred Securities shall have the right to
institute a proceeding directly against the Depositor, pursuant
to Section 8.04 of the Indenture, for enforcement of payment to
such Holder of the principal amount of [Subordinated] Debentures
having an aggregate principal amount equal to the aggregate
Liquidation Amount of the Trust Preferred Securities of such
Holder (a "Direct Action"). Except as set forth in Sections
513(b) and 513(c), the Holders of Trust Preferred Securities
shall have no right to exercise directly any right or remedy
available to the holders of, or in respect of, the [Subordinated]
Debentures.
The holders of a Majority in Liquidation Amount of
the Trust Preferred Securities at the time Outstanding shall have
the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee, or
exercising any trust or power conferred on the Property Trustee
with respect to the Trust Preferred Securities; provided,
however, that, the Property Trustee shall have the right to
decline to follow any such direction if the Property Trustee
being advised by counsel determines that the action so directed
may not lawfully be taken, or if the Property Trustee in good
faith shall determine that the proceedings so directed would be
illegal or involve it in personal liability or be unduly
prejudicial to the rights of Holders of Trust Preferred Securities
not parties to such direction, and provided further that nothing in
this Trust Agreement shall impair the right of the Property Trustee
to take any action deemed proper by the Property Trustee and which
is not inconsistent with such direction by such Holders.
ARTICLE VI
ACTS OF HOLDERS; MEETINGS; VOTING
Section 601 LIMITATIONS ON HOLDER'S VOTING RIGHTS.
(a) Except as provided in this Trust Agreement and in the
Indenture and as otherwise required by law, no Holder of Trust
Preferred Securities shall have any right to vote or in any
manner otherwise control the administration, operation and
management of the Trust or the obligations of the parties hereto,
nor shall anything herein set forth or contained in the terms of
the Trust Securities Certificates be construed so as to
constitute the Holders from time to time as members of an
association.
(b) So long as any [Subordinated] Debentures are held
by the Property Trustee on behalf of the Trust, the Property
Trustee shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the
Debenture Trustee, or execute any trust or power conferred on the
Property Trustee with respect to such [Subordinated] Debentures,
(ii) waive any past default that may be waived under Section 8.07
of the Indenture, (iii) exercise any right to rescind or annul a
declaration that the principal of all the [Subordinated]
Debentures shall be due and payable or (iv) consent to any
amendment, modification or termination of the Indenture or the
[Subordinated] Debentures, where such consent shall be required,
without, in each case, obtaining the prior approval of the
Holders of at least a Majority in Liquidation Amount of the Trust
Preferred Securities, provided, however, that where a consent
under the Indenture would require the consent of each holder of
[Subordinated] Debentures affected thereby, no such consent shall
be given by the Property Trustee without the prior written
consent of each Holder of Trust Preferred Securities. The
Property Trustee shall not revoke any action previously
authorized or approved by a vote of the Holders of Trust
Preferred Securities, except by a subsequent vote of the Holders
of Trust Preferred Securities. Subject to Section 803, the
Property Trustee shall notify all Holders of the Trust Preferred
Securities of any notice of default received with respect to the
[Subordinated] Debentures. In
29
addition to obtaining the foregoing approvals of the Holders of
the Trust Preferred Securities, prior to taking any of the
foregoing actions, the Property Trustee shall, at the expense of
the Depositor, obtain an Opinion of Counsel experienced in such
matters to the effect that such action will not cause the Trust
to be taxable other than as a grantor trust for United States
Federal income tax purposes.
(c) If any proposed amendment to the Trust Agreement
provides for, or the Trust otherwise proposes to effect, (i) any
action that would adversely affect in any material respect the
interests, powers, preferences or special rights of the Trust
Preferred Securities, whether by way of amendment to the Trust
Agreement or otherwise, or (ii) the dissolution, winding-up or
termination of the Trust, other than pursuant to the terms of
this Trust Agreement, then the Holders of Outstanding Trust
Securities as a class will be entitled to vote on such amendment
or proposal and such amendment or proposal shall not be effective
except with the approval of the Holders of at least a Majority
in Liquidation Amount of the Trust Preferred Securities; except
as otherwise provided in Section 1002(c). Notwithstanding any other
provision of this Trust Agreement, no amendment to this Trust
Agreement may be made if, as a result of such amendment, it would
cause the Trust to be taxable other than as a grantor trust for
United States Federal income tax purposes.
Section 602 NOTICE OF MEETINGS. Notice of all meetings of
the Holders, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section 1008,
not less than 21 nor more than 180 days prior to the date fixed
for the meeting.
Section 603 MEETINGS OF HOLDERS.
(a) A meeting of any class of Holders may be called at any
time and from time to time pursuant to this Article VI to make,
give or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Trust
Agreement to be made, given or
taken by Holders.
(b) The Property Trustee, by giving notice as provided in
Section 602, may at any time call a meeting of Holders for any
purpose specified in subsection (a) of this Section, to be held
at such time and at such place in the __________________________,
as the Property Trustee shall determine, or, with the approval of
the Administrators, at any other place. If the Property Trustee
shall have been requested to call a meeting of the Holders of
Trust Preferred Securities by the Holders of 33% in aggregate
Liquidation Amount of all Trust Preferred Securities, for any
purpose specified in subsection (a) of this Section, by written
request setting forth in reasonable detail the action proposed to
be taken at the meeting, and the Property Trustee shall not have
given the notice of such meeting within 21 days after receipt of
such request or shall not thereafter proceed to cause the meeting
to be held as provided herein, then the Holders of Trust
Preferred Securities in the Liquidation Amount above specified,
as the case may be, may determine the time and the place in the
____________________, or in such other place as shall be
determined or approved by the Administrators, for such meeting
and may call such meeting for such purposes by giving notice
thereof as provided in this subsection (b). The Administrators or
the Property Trustee may, at any time in their discretion, call a
meeting of Holders of Trust Preferred Securities to vote on any
matters as to which Holders are entitled to vote.
(c) Any meeting of Holders shall be valid without
notice if the Holders of all Outstanding Trust Securities, Trust
Common Securities or Trust Preferred Securities, as the case may
be, are present in person or by proxy and if representatives of
the Depositor, the Trust and the Property Trustee are present, or
if notice is waived in writing before or after the meeting by
such
30
Holders, or by such of them as are not present at the meeting in
person or by proxy, and by the Depositor, the Trust and the
Property Trustee.
(d) To be entitled to vote at any meeting of Holders
of Trust Securities, a Person shall be (a) a Holder of one or
more Outstanding Trust Securities, Trust Common Securities or
Trust Preferred Securities, as the case may be, or (b) a Person
appointed by an instrument in writing as proxy for such Holder or
Holders by such Holder or Holders. The only Persons who shall be
entitled to attend any meeting of Holders of Trust Securities
shall be the Persons entitled to vote at such meeting and their
counsel, any representatives of the Property Trustee and its
counsel, any representatives of the Trust and its counsel and any
representatives of the Depositor and its counsel.
(e) The Persons entitled to vote at least a Majority
in Liquidation Amount of the Outstanding Trust Securities with
respect to which a meeting shall have been called as herein
before provided, considered as one class, shall constitute a
quorum for a meeting of Holders of such Trust Securities;
provided, however, that if any action is to be taken at such
meeting which this Trust Agreement expressly provides may be
taken by the Holders of a specified percentage, which is less than
a Majority in Liquidation Amount, of such Outstanding Trust
Securities, considered as one class, the Persons entitled to vote
such specified percentage in Liquidation Amount of such
Outstanding Trust Securities, considered as one class, shall
constitute a quorum. In the absence of a quorum within one hour
of the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of such Trust Securities,
be dissolved. In any other case the meeting may be adjourned for
such period as may be determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may
be further adjourned for such period as may be determined by the
chairman of the meeting prior to the adjournment of such
adjourned meeting. Except as provided by Section 604(e), notice
of the reconvening of any meeting adjourned for more than 30 days
shall be given as provided in subsection (b) of this Section not
less than ten days prior to the date on which the meeting is
scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall state expressly the percentage, as
provided above, of the Liquidation Amount of the Outstanding
Trust Securities which shall constitute a quorum.
(f) Except as limited by Section [ ] of the
Indenture, any resolution presented to a meeting or adjourned
meeting duly reconvened at which a quorum is present as aforesaid
may be adopted only by the affirmative vote of the Holders of a
Majority in Liquidation Amount of the Outstanding Trust
Securities, Trust Common Securities or Trust Preferred
Securities, as the case may be, with respect to which such
meeting shall have been called, considered as one class;
provided, however, that, except as so limited, any resolution
with respect to any action which this Trust Agreement expressly
provides may be taken by the Holders of a specified percentage,
which is less than a Majority in Liquidation Amount, of such
Outstanding Trust Securities, considered as one class, may be
adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote
of the Holders of such specified percentage in Liquidation Amount
of such Outstanding Trust Securities, considered as one class.
(g) Any resolution passed or decision taken at any
meeting of Holders of Trust Securities, Trust Common Securities
or Trust Preferred Securities, as the case may be, duly held in
accordance with this Section shall be binding on all such
Holders, whether or not present or represented at the meeting.
Section 604 ATTENDANCE AT MEETINGS; DETERMINATION OF VOTING
RIGHTS;
31
CONDUCT AND ADJOURNMENT OF MEETINGS.
(a) Attendance at meetings of Holders may be in person or by
proxy; and, to the extent permitted by law, any such proxy shall
remain in effect and be binding upon any future Holder of the
Trust Securities with respect to which it was given unless and
until specifically revoked by the Holder or future Holder of such
Trust Securities before being voted.
(b) Notwithstanding any other provisions of this
Trust Agreement, the Property Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Holders
in regard to proof of the holding of such Trust Securities and of
the appointment of proxies and in regard to the appointment and
duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as
it shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Trust Securities
shall be proved in the manner specified in Section 608 and the
appointment of any proxy shall be proved in the manner specified
in Section 608. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof
specified in Section 608 or other proof.
(c) The Property Trustee shall, by an instrument in
writing, appoint a temporary chairman of the meeting, unless the
meeting shall have been called by the Administrators or by
Holders as provided in Section 603(b), in which case the
Administrators or the Holders of Trust Securities calling the
meeting, as the case may be, shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons
entitled to vote a Majority in Liquidation Amount of the
Outstanding Trust Securities represented at the meeting,
considered as one class.
(d) At any meeting each Holder or proxy shall be
entitled to one vote for each $___ Liquidation Amount of Trust
Securities held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any
Trust Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of
the meeting shall have no right to vote, except as a Holder of a
Trust Security or proxy.
(e) Any meeting duly called pursuant to Section 603
at which a quorum is present may be adjourned from time to time
by Persons entitled to vote a Majority in Liquidation Amount of
the Outstanding Trust Securities as may be represented at the
meeting, considered as one class; and the meeting may be held as
so adjourned without further notice.
Section 605 COUNTING VOTES AND RECORDING ACTION OF
MEETINGS. The vote upon any resolution submitted to any meeting
of Holders shall be by written ballots on which shall be
subscribed the signatures of the Holders or of their representatives
by proxy and the aggregate Liquidation Amount and serial numbers of
the Outstanding Trust Securities with respect to which the meeting
shall have been called, held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with the
secretary of the meeting their verified written reports of all
votes cast at the meeting. A record of the proceedings of each
meeting of Holders shall be prepared by the secretary of the
meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken
thereat and affidavits by one or more persons having knowledge of
the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 602.
Each copy shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one such copy
shall be delivered to
32
the Administrators, and another to the Property Trustee to be
preserved by the Property Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed
and verified shall be conclusive evidence of the matters therein
stated.
Section 606 HOLDER ACTION BY WRITTEN CONSENT. In lieu of a
vote of Holders at a meeting as hereinbefore contemplated in this
Article, any request, demand, authorization, direction, notice, consent,
waiver or other action may be made, given or taken by Holders by
written instruments as provided in Section 608.
Section 607 RECORD DATE FOR VOTING AND OTHER PURPOSES. For
the purposes of determining the Holders who are entitled to notice of
and to vote at any meeting or by written consent, or to participate in
any distribution on the Trust Securities in respect of which a record
date is not otherwise provided for in this Trust Agreement, or
for the purpose of any other action, the Administrators or
Property Trustee may from time to time fix a date, not more than
90 days prior to the date of any meeting of Holders or the
payment of a distribution or other action, as the case may be, as
a record date for the determination of the identity of the
Holders of record for such purposes.
Section 608 ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, election, waiver or other action provided by this Trust
Agreement to be made, given or taken by Holders may be embodied
in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by an agent
duly appointed in writing or, alternatively, may be embodied in
and evidenced by the record of Holders voting in favor thereof,
either in person or by proxies duly appointed in writing, at any
meeting of Holders duly called and held in accordance with the
provisions of this Article VI, or a combination of such
instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when such
instrument or instruments or record or both are delivered to the
Property Trustee. Such instrument or instruments and any such
record (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments and so voting at any such
meeting. Proof of execution of any such instrument or of a
writing appointing any such agent, or of the holding by any
Person of a Trust Security, shall be sufficient for any purpose
of this Trust Agreement and (subject to Section 801) conclusive
in favor of the Trustees, if made in the manner provided in this
Section. The record of any meeting of Holders shall be proved in
the manner provided in Section 605.
(b) The fact and date of the execution by any Person
of any such instrument or writing may be proved by the affidavit
of a witness of such execution or by a certificate of a notary
public or other officer authorized by law to take acknowledgments
of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof or may be
proved in any other manner which the Property Trustee or the
Administrator receiving the same deems sufficient. Where such
execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority.
(c) The Liquidation Amount and serial numbers of
Trust Securities held by any Person, and the date of holding the
same, shall be proved by the Securities Register.
(d) Any request, demand, authorization, direction,
notice, consent, election, waiver or other Act of a Holder shall
bind every future Holder of the same Trust Security and the
Holder of
33
every Trust Security issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustees,
the Administrators or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
(e) Until such time as written instruments shall have
been delivered to the Property Trustee with respect to the
requisite percentage of Liquidation Amount of Trust Securities
for the action contemplated by such instruments, any such
instrument executed and delivered by or on behalf of a Holder may
be revoked with respect to any or all of such Trust Securities by
written notice by such Holder or any subsequent Holder, proven in
the manner in which such
instrument was proven.
(f) Trust Securities authenticated and delivered
after any Act of Holders of such Trust Securities may, and shall
if required by the Property Trustee, bear a notation in form
approved by the Property Trustee as to any action taken by such
Act of Holders. If the Administrators shall so determine, new
Trust Securities, so modified as to conform, in the opinion of
the Property Trustee and the Administrators, to such action may be
prepared and executed on behalf of the Trust by an Administrator and
authenticated and delivered by the Property Trustee in exchange
for such Outstanding Trust Securities.
(g) If the Trust (by the Administrators) shall
solicit from Holders any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Trust (by
the Administrators) may, at its option, fix in advance a record
date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent,
waiver or other Act, but shall have no obligation to do so. If such
a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such
record date, but only the Holders of record at the close of
business on the record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite
proportion of the Outstanding Trust Securities have authorized or
agreed or consented to such request, demand, authorization, direction,
notice, consent, waiver or other Act, and for that purpose the
Outstanding Trust Securities shall be computed as of the record date.
(h) If any dispute shall arise among the Holders, the
Administrators or the Trustees with respect to the authenticity,
validity or binding nature of any request, demand, authorization,
direction, consent, waiver or other Act of such Holder or Trustee
under this Article VI, then the determination of such matter by
the Property Trustee shall be conclusive with respect to such
matter.
(i) A Holder may institute a legal proceeding
directly against the Depositor under the Guarantee to enforce its
rights under the Guarantee without first instituting a legal
proceeding against the Guarantee Trustee (as defined in the
Guarantee), the Trust, any Trustee, any Administrator or any
person or entity.
Section 609 INSPECTION OF RECORDS. Upon reasonable notice
to the Administrators and the Property Trustee, the records of
the Trust shall be open to inspection by Holders during normal
business hours for any purpose reasonably related to such
Holder's interest as a Holder.
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Section 701 REPRESENTATIONS AND WARRANTIES OF THE PROPERTY
TRUSTEE AND THE DELAWARE TRUSTEE. The Property Trustee and the
Delaware Trustee, each severally on behalf of and as to itself,
hereby represents and warrants for the benefit of the Depositor
and the Holders that:
(a) The Property Trustee is a banking corporation with
corporate trust powers, duly organized, validly existing and
in good standing under the laws of the State of New York,
with corporate trust power and authority to execute and
deliver, and to carry out and perform its obligations under
the terms of this Trust Agreement.
(b) The execution, delivery and performance by the Property
Trustee of this Trust Agreement has been duly authorized by
all necessary corporate action on the part of the Property
Trustee; and this Trust Agreement has been duly executed and
delivered by the Property Trustee, and constitutes a legal,
valid and binding obligation of the Property Trustee,
enforceable against it in accordance with its terms, subject
to applicable bankruptcy, reorganization, moratorium,
insolvency, and other similar laws affecting creditors'
rights generally and to general principles of equity and the
discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding
in equity or at law).
(c) The execution, delivery and performance of this Trust
Agreement by the Property Trustee does not conflict with or
constitute a breach of the certificate of incorporation or
by-laws of the Property Trustee.
(d) At the Closing Time, the Property Trustee has not
knowingly created any Liens on the Trust Securities.
(e) No consent, approval or authorization of, or
registration with or notice to, any New York State or
Federal banking authority governing the banking or trust
powers of the Property Trustee is required for the
execution, delivery or performance by the Property Trustee,
of this Trust Agreement.
(f) The Delaware Trustee is duly organized, validly existing
and in good standing under the laws of the State of
Delaware, with corporate trust power and authority to
execute and deliver, and to carry out and perform its
obligations under the terms of, this Trust Agreement.
(g) The execution, delivery and performance by the Delaware
Trustee of this Trust Agreement has been duly authorized by
all necessary corporate action on the part of the Delaware
Trustee; and this Trust Agreement has been duly executed and
delivered by the Delaware Trustee, and constitutes a legal,
valid and binding obligation of the Delaware Trustee,
enforceable against it in accordance with its terms, subject
to applicable bankruptcy, reorganization, moratorium,
insolvency, and other similar laws affecting creditors'
rights generally and to general principles of equity and the
discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding
in equity or at law).
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(h) The execution, delivery and performance of this Trust
Agreement by the Delaware Trustee does not conflict with or
constitute a breach of the certificate of incorporation or
by-laws of the Delaware Trustee.
(i) No consent, approval or authorization of, or
registration with or notice to any Delaware, State or
Federal banking authority governing the trust powers of the
Delaware Trustee is required for the execution, delivery or
performance by the Delaware Trustee, of this Trust
Agreement.
(j) The Delaware Trustee is an entity which has its
principal place of business in the State of Delaware.
Section 702 REPRESENTATIONS AND WARRANTIES OF DEPOSITOR.
The Depositor hereby represents and warrants for the benefit of
the Holders that:
(a) the Trust Securities Certificates issued at the Closing
Time on behalf of the Trust have been duly authorized and
will have been duly and validly executed, and, subject to
payment therefor, issued and delivered by the Trust pursuant
to the terms and provisions of, and in accordance with the
requirements of, this Trust Agreement, and the Holders will
be, as of each such date, entitled to the benefits of this
Trust Agreement; and
(b) there are no taxes, fees or other governmental charges
payable by the Trust (or the Administrators or Trustees on
behalf of the Trust) under the laws of the State of Delaware
or any political subdivision thereof in connection with the
execution, delivery and performance by either the Property
Trustee or the Delaware Trustee, as the case may be, of this
Trust Agreement.
ARTICLE VIII
THE TRUSTEES; THE ADMINISTRATORS
Section 801 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The duties and responsibilities of the Trustees and the
Administrators shall be as provided by this Trust Agreement, and,
in the case of the Property Trustee, by the Trust Indenture Act,
and no implied covenants or obligations shall be read into this
Trust Agreement against the Property Trustee. For purposes of
Sections 315(a) and 315(c) of the Trust Indenture Act, the term
"default" is hereby defined as an Event of Default which has
occurred and is continuing.
(b) All payments made by the Property Trustee or a
Paying Agent in respect of the Trust Securities shall be made
only from the revenue and proceeds from the Trust Property and
only to the extent that there shall be sufficient revenue or
proceeds from the Trust Property to enable the Property Trustee
or a Paying Agent to make payments in accordance with the terms
hereof. Each Holder, by its acceptance of a Trust Security,
agrees that it will look solely to the revenue and proceeds from
the Trust Property to the extent legally available for
distribution to it as herein provided and that neither the
Trustees nor the Administrators are personally liable to it for
any amount distributable in respect of any Trust Security or for
any other liability in respect of any Trust Security. This
Section 801(b) does not limit the liability of the Trustees
expressly set forth elsewhere in this Trust Agreement or, in the
case of the Property Trustee, in the Trust Indenture Act.
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(c) The Property Trustee, prior to the occurrence of
an Event of Default and after the curing or waiving of all Events
of Default that may have occurred, undertakes to perform such
duties and only such duties as are specifically set forth in this
Trust Agreement. In case an Event of Default of which a
Responsible Officer of the Property Trustee has actual knowledge
has occurred (which has not been cured or waived), the Property
Trustee shall exercise such of the rights and powers vested in it
by this Trust Agreement, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or
use under the circumstances in the conduct of such person's own
affairs.
(d) No provision of this Trust Agreement shall be
construed to relieve the Property Trustee from liability for its
own negligent action, its own negligent failure to act or its own
willful misconduct, except that prior to the occurrence of an
Event of Default and after the curing or waiving of all Events of
Default which may have occurred
(i) the duties and obligations of the Property Trustee
shall be determined solely by the express provisions of
this Trust Agreement, and the Property Trustee shall not
be liable except for the performance of such duties and
obligations as are specifically set forth in this Trust
Agreement, and no implied covenants or obligations shall
be read into this Trust Agreement against the Property
Trustee; and
(ii) in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may conclusively
rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Property
Trustee and conforming to the requirements of this Trust
Agreement; but, in the case of any such certificates or
opinions that by any provision hereof are specifically
required to be furnished to the Property Trustee, the
Property Trustee shall be under a duty to examine the
same to determine whether or not they conform to the
requirements of this Trust Agreement.
(e) The Property Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer or
Officers of the Property Trustee, unless it shall be proven that
the Property Trustee was negligent in ascertaining the pertinent
facts.
(f) The Property Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good
faith, in accordance with the direction of the Holders of Trust
Preferred Securities pursuant to Section 513, relating to the
time, method and place of conducting any proceeding for any
remedy available to the Property Trustee, or exercising any trust
or power conferred upon the Property Trustee, under this Trust
Agreement.
(g) No provision of this Trust Agreement shall
require the Property Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights
or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity, satisfactory to
the Property Trustee in its reasonable judgment, against such
risk or liability is not reasonably assured to it.
(h) Notwithstanding anything contained in this Trust
Agreement to the contrary, the duties and responsibilities of the
Property Trustee under this Trust Agreement shall be subject to
the protections, exculpations and limitations on liability
afforded to the Property Trustee under the provisions of the
Trust Indenture Act, including those provisions of such Act
deemed by such Act to be included herein.
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(i) Whether or not therein expressly so provided,
every provision of this Trust Agreement relating to the conduct
or affecting the liability of or affording protection to the
Property Trustee shall be subject to the provisions of this
Section.
Section 802 EVENTS OF DEFAULT; WAIVER. Holders of a
Majority in Liquidation Amount of the Trust Preferred Securities
may, on behalf of the Holders of all the Trust Preferred
Securities, waive any past Event of Default and its consequences,
except a default described in clause (b) or (c) of the definition
of "Event of Default" contained in Section 101, a default in
respect of a covenant or provision which under this Trust
Agreement cannot be modified or amended without the consent of
the Holder of each Outstanding Trust Preferred Security or a
Debenture Event of Default that the Holders of a Majority in
Liquidation Amount of the Trust Preferred Securities would not be
entitled to waive pursuant to Section 513(b). Upon such waiver,
any such Event of Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for
every purpose of this Trust Agreement, but no such waiver shall
extend to any subsequent or other default or Event of Default or
impair any right consequent therefrom.
Section 803 CERTAIN NOTICES.
(a) Within five Business Days after the occurrence of any
default hereunder of which the Property Trustee has knowledge
(within the meaning of Section 804(h) hereof), the Property
Trustee shall give notice thereof to the Holders in the manner
and to the extent required to do so by the Trust Indenture Act,
unless such default shall have been cured or waived; provided,
however, that in the case of any default of the character
specified in clause (d) under the subheading "Event of Default"
in Section 101, no such notice to Holders shall be given until at
least 60 days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which is, or
after notice or lapse of time, or both, would become, an Event of
Default.
(b) Within five Business Days after the receipt of
notice of the Depositor's exercise of its right to defer the
payment of interest on the [Subordinated] Debentures pursuant to
the Indenture, the Property Trustee shall transmit, in the manner
and to the extent provided in Section 1008, notice of such
exercise to the Holders and the Administrators, unless such
exercise shall have been revoked.
Section 804 CERTAIN RIGHTS OF PROPERTY TRUSTEE. Subject to
the provisions of Section 801 and to the applicable provisions of
the Trust Indenture Act:
(a) the Property Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Depositor mentioned
herein shall be sufficiently evidenced by an Officer's
Certificate, or as otherwise expressly provided herein, and
any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Trust Agreement
the Property Trustee shall deem it desirable that a matter
be proved or established prior to taking, suffering or
omitting any action hereunder, the Property Trustee (unless
other evidence be herein
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specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officer's Certificate,
(d) the Property Trustee may consult with counsel and the
advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon;
(e) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Trust Agreement at the request or direction of any Holder
pursuant to this Trust Agreement, unless such Holder shall
have offered to the Property Trustee reasonable security or
indemnity against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or
direction;
(f) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document, but the Property Trustee, in its
discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the
Property Trustee shall determine to make such further
inquiry or investigation, it shall (subject to applicable
legal requirements) be entitled to examine, during normal
business hours, the books, records and premises of the Trust
and the Depositor, personally or by agent or attorney;
(g) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the
Property Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed
with due care by it hereunder; and
(h) the Property Trustee shall not be charged with knowledge
of any default or Event of Default unless either (1) a
Responsible Officer of the Property Trustee shall have
actual knowledge of the default or Event of Default or (2)
written notice of such default or Event of Default (which
shall state that such notice is a "Notice of Default" or a
"Notice of an Event of Default" hereunder, as the case may
be) shall have been given to the Property Trustee by the
Depositor, any Administrator, any other obligor on Trust
Preferred Securities or by any Holder of Trust Preferred
Securities.
Section 805 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES. The recitals contained herein and in the Trust Securities
Certificates shall be taken as the statements of the Trust, and
the Trustees and the Administrators do not assume any
responsibility for their correctness. The Trustees and the
Administrators shall not be accountable for the use or
application by the Depositor of the proceeds of the
[Subordinated] Debentures.
Section 806 MAY HOLD SECURITIES. Except as provided in the
definition of the term "Outstanding" in Article I, the
Administrators, any Trustee or any other agent of any Trustee or
the Trust, in its individual or any other capacity, may become
the owner or pledgee of Trust Securities and, subject to Sections
809 and 814, may otherwise deal with the Trust with the same
rights it would have if it were not an Administrator, Trustee or
such other agent.
Section 807 COMPENSATION; INDEMNITY. The Depositor, as
borrower, shall
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(a) pay to the Trustees from time to time reasonable
compensation for all services rendered by them hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, reimburse
the Trustees upon request for all reasonable expenses,
disbursements and advances reasonably incurred or made by the
Trustees in accordance with any provision of this Trust
Agreement, including the costs of collection (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except to the extent that any such expense,
disbursement or advance may be attributable to its negligence,
willful misconduct or bad faith; and
(c) indemnify and hold harmless each Trustee and each
Administrator (each referred to herein as an "Indemnified
Person") from and against any and all losses, demands, claims,
liabilities, causes of action or expenses (including reasonable
attorney's fees and expenses) incurred by it arising out of or in
connection with the acceptance or administration of the trust or
trusts hereunder or the performance of its duties hereunder
(including the reasonable costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder), except to
the extent any such loss, demand, claim, liability, cause of
action or expense may be attributable to its negligence, willful
misconduct or bad faith, and assume the defense of such
Indemnified Person with counsel acceptable to such Indemnified
Person, unless such Indemnified Person shall have been advised by
counsel that there may be one or more legal defenses available to
it which are different from or additional to those available to
the Depositor.
No Trustee may claim any Lien on any Trust Property as a
result of any amount due pursuant to this Section.
When a Trustee incurs expenses or renders services in
connection with an Event of Default specified in clause (e) under
the subheading "Event of Default" in Section 101, the expenses
(including the reasonable charges and expenses of its counsel)
and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or State
bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive termination of
this Trust Agreement.
Section 808 TRUSTEES REQUIRED; ELIGIBILITY OF TRUSTEES AND
ADMINISTRATORS.
(a) There shall at all times be a Property Trustee hereunder
with respect to the Trust Securities. The Property Trustee shall
be
(i) a corporation organized and doing business under the
laws of the United States, any State or Territory thereof
or the District of Columbia, authorized under such laws
to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 and subject
to supervision or examination by Federal or State
authority, or
(ii) if and to the extent permitted by the Commission by
rule, regulation or order upon application, a corporation
or other Person organized and doing business under the
laws of a foreign government, authorized under such laws
to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 or the Dollar
equivalent of the applicable foreign currency and subject
to supervision or
40
examination by authority of such foreign government or a
political subdivision thereof substantially equivalent to
supervision or examination applicable to United States
institutional trustees,
and, in either case, qualified and eligible under this Article
VIII and the Trust Indenture Act. If such corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of such supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time the Property Trustee shall cease to be
eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect
hereinafter specified in this Article VIII.
(b) There shall at all times be one or more
Administrators hereunder. Each Administrator shall be either a
natural person who is at least 21 years of age or a legal entity
that shall act through one or more persons authorized to bind
that entity. An employee, officer or Affiliate of the Depositor
may serve as an Administrator.
(c) There shall at all times be a Delaware Trustee.
The Delaware Trustee shall either be (i) a natural person who is
at least 21 years of age and resident of the State of Delaware
or (ii) a legal entity with its principal lace of business in the
State of Delaware and that otherwise meets the requirements of
applicable Delaware law that shall act through one or more
persons authorized to bind such entity.
Section 809 CONFLICTING INTERESTS.
(a) If the Property Trustee has or shall acquire a
conflicting interest within the meaning of the Trust Indenture
Act, the Property Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Trust Agreement.
(b) The Guarantee, the Indenture, the Guarantee
Agreement dated as of ______________ between the Depositor and
____________, as guarantee trustee, relating to Great Plains
Energy Capital Trust __, and the Amended and Restated Trust
Agreement dated as of _________________ among the Depositor, as
depositor, ______________________, as property trustee,
_________________________, as Delaware trustee and the
administrators named therein, relating to Great Plains Energy
Capital Trust __, shall be deemed to be sufficiently described in
this Trust Agreement for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
Section 810 CO-TRUSTEES AND SEPARATE TRUSTEE. At any time
or times, for the purpose of meeting the legal requirements of
any applicable jurisdiction, the Depositor and the Property
Trustee shall have power to appoint, and, upon the written
request of the Property Trustee or of the Holders of at least
thirty-three per centum (33%) in Liquidation Amount of the Trust
Securities then Outstanding, the Depositor and the Administrators
shall for such purpose join with the Property Trustee in the
execution and delivery of all instruments and agreements
necessary or proper to appoint, one or more Persons approved by
the Property Trustee either to act as co-trustee, jointly with
the Property Trustee, or to act as separate trustee, in either
case with such powers as may be provided in the instrument of
appointment, and to vest in such Person or persons, in the
capacity aforesaid, any property, title, right or power deemed
necessary or desirable, subject to the other provisions of this
Section. If the Depositor or the Administrators do not join in
such appointment within 15 days after the receipt by them of a
41
request so to do, or if an Event of Default shall have occurred
and be continuing, the Property Trustee alone shall have power to
make such appointment.
Should any written instrument or instruments from the
Depositor be required by any co-trustee or separate trustee so
appointed to more fully confirm to such co-trustee or separate
trustee such property, title, right or power, any and all such
instruments shall, on request, be executed, acknowledged and
delivered by the Depositor.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject
to the following conditions:
(a) the Trust Securities Certificates shall be authenticated
and delivered, and all rights, powers, duties and
obligations hereunder in respect of the custody of
securities, cash and other personal property held by, or
required to be deposited or pledged with, the Property
Trustee hereunder, shall be exercised solely, by the
Property Trustee;
(b) the rights, powers, duties and obligations hereby
conferred or imposed upon the Property Trustee in respect of
any property covered by such appointment shall be conferred
or imposed upon and exercised or performed either by the
Property Trustee or by the Property Trustee and such co-
trustee or separate trustee jointly, as shall be provided in
the instrument appointing such co-trustee or separate
trustee, except to the extent that under any law of any
jurisdiction in which any particular act is to be performed,
the Property Trustee shall be incompetent or unqualified to
perform such act, in which event such rights, powers, duties
and obligations shall be exercised and performed by such co-
trustee or separate trustee;
(c) the Property Trustee at any time, by an instrument in
writing executed by it, with the concurrence of the
Depositor, may accept the resignation of or remove any co-
trustee or separate trustee appointed under this Section,
and, if a Debenture Event of Default shall have occurred and
be continuing, the Property Trustee shall have power to
accept the resignation of, or remove, any such co-trustee or
separate trustee without the concurrence of the Depositor.
Upon the written request of the Property Trustee, the
Depositor shall join with the Property Trustee in the
execution and delivery of all instruments and agreements
necessary or proper to effectuate such resignation or
removal. A successor to any co-trustee or separate trustee
so resigned or removed may be appointed in the manner
provided in this Section;
(d) no co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the
Property Trustee, or any other such trustee hereunder; and
(e) any Act of Holders delivered to the Property Trustee
shall be deemed to have been delivered to each such co-
trustee and separate trustee.
Section 811 RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR.
(a) No resignation or removal of any Trustee (the "Relevant
Trustee") and no appointment of a successor Trustee pursuant to
this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the
applicable requirements of Section 812.
(b) A Trustee may resign at any time by giving
written notice thereof to the Depositor. If the instrument of
acceptance by a successor Trustee required by Section 812 shall
not have
42
been delivered to the Relevant Trustee within 30 days after the
giving of such notice of resignation, the Relevant Trustee may
petition any court of the State of Delaware for the appointment
of a successor Trustee.
(c) The Property Trustee or the Delaware Trustee may
be removed at any time by Act of the Holders of at least a
Majority in Liquidation Amount of the Trust Preferred Securities
delivered to the Relevant Trustee (in its individual capacity and
on behalf of the Trust) and to the Depositor.
(d) If at any time:
(1) a Trustee shall fail to comply with Section 809 after
written request therefor by the Depositor or by any
Holder who has been a bona fide Holder for at least six
months, or
(2) a Trustee shall cease to be eligible under Section
808 and shall fail to resign after written request
therefor by the Depositor or by any such Holder, or
(3) a Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the
Relevant Trustee or of its property shall be appointed or
any public officer shall take charge or control of the
Relevant Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (x) the Depositor by a Board Resolution
may remove the Relevant Trustee or (y) any Holder who has been a
bona fide Holder for at least six months may, on behalf of
himself and all others similarly situated, petition any court of
the State of Delaware for the removal of the Relevant Trustee and
the appointment of a successor Relevant Trustee.
(e) If a Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
any Trustee for any cause (other than as contemplated in clause
(y) in subsection (d) of this Section), the Depositor, by a Board
Resolution, shall promptly appoint a successor Relevant Trustee
and shall comply with the applicable requirements of Section 812.
If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor
Relevant Trustee shall be appointed by Act of the Holders of a
Majority in Liquidation Amount of the Trust Preferred Securities
then Outstanding delivered to the Depositor and the retiring
Trustee, the successor Relevant Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 812, become the
successor Relevant Trustee and to that extent supersede the
successor Relevant Trustee appointed by the Depositor. If no
successor Relevant Trustee shall have been so appointed by the
Depositor or the Holders and accepted appointment in the manner
required by Section 812, any Holder who has been a bona fide
Holder of a Trust Preferred Security for at least six months may,
on behalf of itself and all others similarly situated, petition
any court of the State of Delaware for the appointment of a
successor Relevant Trustee.
(f) So long as no event which is, or after notice or
lapse of time, or both, would become, an Event of Default shall
have occurred and be continuing, and except with respect to a
Trustee appointed by Act of the Holders of a Majority in
Liquidation Amount of the Outstanding Trust Preferred Securities
pursuant to subsection (e) of this Section, if the Depositor
shall have delivered to the Relevant Trustee (i) a Board Resolution
appointing a successor Relevant Trustee, effective as of a date
specified therein, and (ii) an instrument of acceptance of such
appointment, effective as of such date, by such successor
Relevant Trustee in accordance with
43
Section 812, the Relevant Trustee shall be deemed to have
resigned as contemplated in subsection (b) of this Section, the
successor Relevant Trustee shall be deemed to have been
appointed by the Depositor pursuant to subsection (e) of this
Section and such appointment shall be deemed to have been
accepted as contemplated in Section 812, all as of such date, and
all other provisions of this Section and Section 812 shall be
applicable to such resignation, appointment and acceptance except
to the extent inconsistent with this subsection (f).
(g) The Depositor or, should the Depositor fail so to
act promptly, the successor Relevant Trustee, at the expense of
the Depositor, shall give notice of each resignation and each
removal of any Trustee and each appointment of a successor
Relevant Trustee by mailing written notice of such event by first-
class mail, postage prepaid, to al Holders of Trust Preferred
Securities as their names and addresses appear in the Securities
Register. Each notice shall include the name of the successor
Relevant Trustee and the address of its corporate trust office.
Section 812 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor
Relevant Trustee, every such successor Relevant Trustee so
appointed with respect to the Trust Securities and the Trust
shall execute, acknowledge and deliver to the Depositor and to
the retiring Relevant Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the
retiring Relevant Trustee shall become effective and such
successor Relevant Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Relevant Trustee; but, on the
request of the Depositor or the successor Relevant Trustee, such
retiring Relevant Trustee shall, upon payment of all sums owed to
it, execute and deliver an instrument transferring to such
successor Relevant Trustee all the rights, powers and trusts of
the retiring Relevant Trustee and shall duly assign, transfer and
deliver to such successor Relevant Trustee all property and money
held by such retiring Relevant Trustee
hereunder with respect to the Trust Securities and the Trust.
(b) Upon request of any such successor Relevant
Trustee, the Depositor shall execute any instruments which fully
vest in and confirm to such successor Relevant Trustee all such
rights, powers and trusts referred to in subsection (a) of this
Section.
(c) No successor Relevant Trustee shall accept its
appointment unless at the time of such acceptance such successor
Relevant Trustee shall be qualified and eligible under this
Article VIII.
Section 813 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS. Any corporation into which the Property Trustee or
the Delaware Trustee may be merged or converted or with which it may
be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which such Relevant Trustee shall be
a party, or any corporation succeeding to all or substantially all the
corporate trust business of such Relevant Trustee, shall be the
successor of the Relevant Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this
Article VIII, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any
Trust Securities shall have been authenticated, but not
delivered, by the Relevant Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Trust
Securities so authenticated with the same effect as if such
successor Relevant Trustee had itself authenticated such Trust
Securities.
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Section 814 PREFERENTIAL COLLECTION OF CLAIMS AGAINST
DEPOSITOR OR TRUST. If the Property Trustee shall be or become a
creditor of the Depositor or any other obligor upon the Trust
Securities (other than by reason of a relationship described in
Section 311(b) of the Trust Indenture Act), the Property Trustee
shall be subject to any and all applicable provisions of the
Trust Indenture Act regarding the collection of claims against
the Depositor or such other obligor. For purposes of Section
311(b) of the Trust Indenture Act:
(a) the term "cash transaction" means any transaction in
which full payment for goods or securities sold is made
within seven days after delivery of the goods or securities
in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand;
(b) the term "self-liquidating paper" means any draft, bill
of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Depositor for the purpose of
financing the purchase, processing, manufacturing, shipment,
storage or sale of goods, wares or merchandise and which is
secured by documents evidencing title to, possession of, or
a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods,
wares or merchandise previously constituting the security,
provided the security is received by the Property Trustee
simultaneously with the creation of the creditor
relationship with the Depositor arising from the making,
drawing, negotiating or incurring of the draft, bill of
exchange, acceptance or obligation.
Section 815 TRUSTEE MAY FILE PROOFS OF CLAIM. In case of
the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Trust or any other obligor
upon the Trust Securities or the property of the Trust or of such
other obligor or their creditors, the Property Trustee
(irrespective of whether any Distributions on the Trust
Securities shall then be due and payable as therein expressed or
by declaration or otherwise and irrespective of whether the
Property Trustee shall have made any demand on the Trust for the
payment of overdue Distributions) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Trust
Securities and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the
Property Trustee (including any claim for amounts due to the
Property Trustee under Section 807) and of the Holders
allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute
the same, and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder
to make such payments to the Property Trustee and, in the
event that the Property Trustee shall consent to the making
of such payments directly to the Holders, to pay to the
Property Trustee any amounts due it under Section 807.
Nothing herein contained shall be deemed to authorize the
Property Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Trust Securities or the
rights of any Holder thereof or to authorize the Property Trustee
to vote in respect of the claim of any Holder in any such
proceeding.
Section 816 REPORTS BY PROPERTY TRUSTEE.
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(a) Not later than _________ of each year commencing with
___________, 20__, the Property Trustee shall transmit to all
Holders in accordance with Section 1008, and to the Depositor, a
brief report dated as of the immediately preceding ________
concerning the Property Trustee and its actions under this Trust
Agreement if and as may be required pursuant to Section 313(a) of
the Trust Indenture Act.
(b) In addition the Property Trustee shall transmit
to Holders such reports concerning the Property Trustee and its
actions under this Trust Agreement as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided
pursuant thereto.
(c) A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Property Trustee
with the Depositor.
Section 817 REPORTS TO THE PROPERTY TRUSTEE. The Depositor
and the Administrators on behalf of the Trust shall provide to
the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and
the compliance certificate required by Section 314(a) of the
Trust Indenture Act in the form, in the manner and at the times
required by Section 314 of the Trust Indenture Act. The Depositor
and the Administrators shall annually file with the Property
Trustee a certificate specifying whether such Person is in
compliance with all the terms and covenants applicable to such
Person hereunder, such compliance certificate to be delivered
annually on or before ________________ of each year beginning
in ________________.
Section 818 EVIDENCE OF COMPLIANCE WITH CONDITIONS
PRECEDENT. Each of the Depositor and the Administrators on behalf
of the Trust shall provide to the Property Trustee such evidence
of compliance with any conditions precedent, if any, provided for
in this Trust Agreement that relate to any of the matters set forth
in Section 314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given by an officer pursuant to Section 314(c)(1)
of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
Section 819 NUMBER OF TRUSTEES.
(a) The number of Trustees shall be two. The Property
Trustee and the Delaware Trustee may be the same Person, in which
case, the number of Trustees may be one.
(b) If a Trustee ceases to hold office for any
reason, a vacancy shall occur. The vacancy shall be filled with
an Trustee appointed in accordance with Section 811.
(c) The death, resignation, retirement, removal,
bankruptcy, incompetence or incapacity to perform the duties of
an Trustee shall not operate to dissolve, terminate or annul the
Trust or terminate this Trust Agreement.
Section 820 DELEGATION OF POWER.
(a) Any Administrator may, by power of attorney consistent
with applicable law, delegate to any other natural person over
the age of 21 his or her power for the purpose of executing any
documents contemplated in Section 207(a) or making any
governmental filing; and
(b) The Administrators shall have power to delegate
from time to time to such of their number the doing of such
things and the execution of such instruments either in the name
of the Trust or the names of the Administrators or otherwise as
the Administrators may deem
46
expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of this Trust
Agreement.
Section 821 APPOINTMENT OF ADMINISTRATORS.
(a) The Administrators shall be appointed by the Holders of
a Majority in Liquidation Amount of the Trust Common Securities
and may be removed by the Holders of a Majority in Liquidation
Amount of the Trust Common Securities or may resign at any time.
Upon any resignation or removal, the Depositor shall appoint a
successor Administrator. Each Administrator shall execute this
Trust Agreement thereby agreeing to comply with, and be legally
bound by, all of the terms, conditions and provisions of this
Trust Agreement. If at any time there is no Administrator, the
Property Trustee or any Holder who has been a Holder of Trust
Securities for at least six months may petition any court of
competent jurisdiction for the appointment of one or more
Administrators.
(b) Whenever a vacancy in the number of
Administrators shall occur, until such vacancy is filled by the
appointment of an Administrator in accordance with this Section
821, the Administrators in office, regardless of their number
(and notwithstanding any other provision of this Agreement),
shall have all the powers granted to the Administrators and shall
discharge all the duties imposed upon the Administrators by this
Trust Agreement.
(c) Notwithstanding the foregoing, or any other
provision of this Trust Agreement, in the event any Administrator
who is a natural person dies or becomes, in the opinion of the
Holders of a Majority in Liquidation Amount of the Trust Common
Securities, incompetent, or incapacitated, the vacancy created by
such death, incompetence or incapacity may be filled by the
remaining Administrators, if there were at least two of them
prior to such vacancy, and by the Depositor, if there were not
two such Administrators immediately prior to such vacancy (with
the successor in each case being a Person who satisfies the
eligibility requirement for Administrators set forth in Section 808).
Section 822 DELAWARE TRUSTEE.
(a) Notwithstanding any other provision of this Trust
Agreement, the Delaware Trustee shall not be entitled to exercise
any powers, nor shall the Delaware Trustee have any of the duties
and responsibilities of the Administrators or the Property
Trustee described in this Trust Agreement. The Delaware Trustee
shall be a trustee for the sole and limited purpose of fulfilling
the requirements of Section 3807 of the Delaware Business Trust
Act.
(b) It is expressly understood and agreed by the
parties hereto that in fulfilling its obligations as Delaware
Trustee hereunder on behalf of the Trust (i) any agreements or
instruments executed and delivered by__________________________
are executed and delivered not in its individual capacity but
solely as Delaware Trustee under this Trust Agreement in the
exercise of the powers and authority conferred and vested in it,
(ii) each of the representations, undertakings and agreements herein
made on the part of the Trust is made and intended not as
representations, warranties, covenants, undertakings and agreements
by _____________________________ in its individual capacity but
is made and intended for the purpose of binding only the rust,
and (iii) under no circumstances shall _________________
_________________________________ be personally liable for the
payment of any indebtedness or expenses of the Trust or be liable
for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Trust under this
Trust Agreement, except if such breach or failure is due to any
gross negligence or willful misconduct of the Delaware Trustee.
47
ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER
Section 901 DISSOLUTION UPON EXPIRATION DATE. Unless
earlier dissolved, pursuant to an Early Termination Event, the
Trust shall automatically dissolve on ____________________ (the
"Expiration Date"), and thereafter the Trust Property shall be
distributed in accordance with Section 904.
Section 902 EARLY DISSOLUTION. The first to occur of any of
the following events is an "Early Termination Event," upon the
occurrence of which the Trust shall dissolve:
(a) the occurrence of the appointment of a receiver
or other similar official in any liquidation, insolvency or
similar proceeding with respect to the Depositor or all or
substantially all of its property, or a court or other
governmental agency shall enter a decree or order relating to the
Depositor for relief in a voluntary or involuntary case under
Chapter 7 or Chapter 11 of the United States Bankruptcy Code or
any other similar State or Federal law now or hereafter in effect
and such decree or order shall remain unstayed and undischarged
for a period of 60 days, unless the Depositor shall transfer the
Trust Common Securities as provided by Section 511, in which
case this provision shall refer instead to any such successor
Holder of the Trust Common Securities;
(b) the written direction to the Property Trustee
from the Holder of the Trust Common Securities at any time to
dissolve the Trust and to distribute the [Subordinated]
Debentures to Holders in exchange for the Trust Preferred
Securities (which direction, subject to Section 904(a), is
optional and wholly within the discretion of the Holder of the
Trust Common Securities);
(c) the redemption of all of the Trust Preferred
Securities in connection with the repayment or redemption of all
the [Subordinated] Debentures; and
(d) the entry of an order for dissolution of the
Trust by a court of competent jurisdiction.
Section 903 TERMINATION. As soon as is practicable after
the occurrence of an event referred to in Section 901 or 902, and
upon the completion of the winding-up and liquidation of the
Trust, the Administrators and the Trustees (each of whom is
hereby authorized to take such action) shall file a certificate
of cancellation with the Secretary of State of the State of
Delaware terminating the Trust and, upon such filing, the
respective obligations and responsibilities of the Trustees, the
Administrators and the Trust created and continued hereby shall
terminate, except as otherwise required by law or this Trust
Agreement.
Section 904 LIQUIDATION.
(a) If an Early Termination Event specified in clause (a), (b) or
(d) of Section 902 occurs or upon the Expiration Date, the Trust
shall be wound-up and liquidated by the Property Trustee as
expeditiously as the Property Trustee determines to be possible
by distributing, after paying or making reasonable provision to
pay all claims and obligations of the Trust in accordance with
Section 3808(e) of the Delaware Business Trust Act, to each
Holder a Like Amount of [Subordinated] Debentures, subject to
Section 904(d). Notice of liquidation shall be given by the
Property Trustee by first-class mail, postage prepaid, mailed not
later than 15 nor more than 45
48
days prior to the Liquidation Date to each Holder of Trust
Securities at such Holder's address appearing in the Securities
Register. All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that, from and after the Liquidation Date, the
Trust Securities will no longer be deemed to be
Outstanding and any Trust Securities Certificates not
surrendered for exchange will be deemed to represent a
Like Amount of [Subordinated] Debentures; and
(iii) provide such information with respect to the
mechanics by which Holders may exchange Trust Securities
Certificates for [Subordinated] Debentures, or if Section
904(d) applies receive a Liquidation Distribution, as the
Administrators or the Property Trustee shall deem
appropriate.
(b) Except where Section 902(c) or 904(d) applies, in
order to effect the liquidation of the Trust and distribution of
the [Subordinated] Debentures to Holders, the Property Trustee
shall establish a record date for such distribution (which shall
be not more than 30 days prior to the Liquidation Date) and,
either itself acting as exchange agent or through the appointment
of a separate exchange agent, shall establish such procedures as it
shall deem appropriate to effect the distribution of
[Subordinated] Debentures in exchange for the Outstanding Trust
Securities Certificates.
(c) Except where Section 902(c) or 904(d) applies,
after the Liquidation Date, (i) the Trust Securities will no
longer be deemed to be Outstanding, (ii) the Depositary for the
Trust Preferred Securities or its nominee, as the registered
Holder of the Global Trust Preferred Securities Certificates,
shall receive a registered global certificate or certificates
representing the [Subordinated] Debentures to be delivered upon
such distribution with respect to Trust Preferred Securities held
by the Depositary or its nominee, and, (iii) any Trust Securities
Certificates not held by the Depositary for the Trust Preferred
Securities or its nominee as specified in clause (ii) above will
be deemed to represent [Subordinated] Debentures having a
principal amount equal to the stated Liquidation Amount of the
Trust Securities represented thereby 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 Securities Registrar for transfer or
reissuance.
(d) If, notwithstanding the other provisions of this
Section 904, whether because of an order for dissolution entered
by a court of competent jurisdiction or otherwise, distribution
of the [Subordinated] Debentures is not practical, or if any
Early Termination Event specified in clause (c) of Section 902
occurs, the Trust shall be dissolved, and the Trust Property
shall be liquidated, by the Property Trustee in such manner as the
Property Trustee determines. In such event, on the date of the
dissolution of the Trust, Holders will be entitled to receive out
of the assets of the Trust available for distribution to Holders,
after paying or making reasonable provision to pay all claims and
obligations of the Trust in accordance with Section 3808(e) of
the Delaware Business Trust Act, an amount equal to the aggregate of
Liquidation Amount per Trust Security plus accumulated and unpaid
Distributions thereon to the date of payment (such amount being
the "Liquidation Distribution"). If, upon any such dissolution,
the Liquidation Distribution can be paid only in part because the
Trust has insufficient assets available to pay in full the
aggregate Liquidation Distribution, then, subject to the next
succeeding sentence, the amounts payable by the Trust on the
Trust Securities shall be paid on a pro rata basis (based
upon Liquidation Amounts). The Holders of the Trust Common
Securities will be entitled to receive Liquidation Distributions
upon any such dissolution, pro rata (determined as aforesaid)
49
with Holders of Trust Preferred Securities, except that, if a
Debenture Event of Default has occurred and is continuing, the
Trust Preferred Securities shall have a priority over the Trust
Common Securities as provided in Section 403.
Section 905 MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR
REPLACEMENTS OF THE TRUST. The Trust may not merge with or into,
consolidate, amalgamate, or be replaced by, or convey,
transfer or lease its properties and assets substantially as
an entirety to, any entity, except pursuant to this Section
905 or Section 904. At the request of the Holders of the
Trust Common Securities, and with the consent of the Holders of
at least a Majority in Liquidation Amount of the Trust Preferred
Securities, but without the consent of the Trustees, the Trust
may merge with or into, consolidate, amalgamate, or be
replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to a trust organized as such
under the laws of any state; provided, however, that (i) such
successor entity either (a) expressly assumes all of the obligations
of the Trust with respect to the Trust Preferred Securities or
(b) substitutes for the Trust Preferred Securities other securities
having substantially the same terms as the Trust Preferred
Securities (the "Successor Trust Preferred Securities") so
long as the Successor Trust Preferred Securities have the same
priority as the Trust Preferred Securities with respect to
distributions and payments upon liquidation, redemption and
otherwise; (ii) a trustee of such successor entity possessing the
same powers and duties as the Property Trustee is
appointed to hold the [Subordinated] Debentures; (iii) the Trust
Preferred Securities or any Successor Trust Preferred Securities
are listed or quoted, or any Successor Trust Preferred Securities
will be listed or quoted upon notification of issuance, on any
national securities exchange or with another organization on
which Trust Preferred Securities are then listed or quoted; (iv)
such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the
rights, preferences and privileges of the holders of the Trust
Preferred Securities (including any Successor Trust Preferred
Securities) in any material respect; (v) such successor entity
has a purpose substantially identical to that of the Trust; (vi)
prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, the Property Trustee has received
an Opinion of Counsel from independent counsel experienced in
such matters to the effect that (a) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights preferences and privileges of the
holders of the Trust Preferred Securities (including any
Successor Trust Preferred Securities) in any material respect,
and (b) following such merger, 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; and (vii)
the Depositor or any permitted transferee to whom it has
transferred the Trust Common Securities hereunder owns all of the
Trust Common Securities of such successor entity and guarantees
the obligations of such successor entity under the Successor
Trust Preferred Securities at least to the extent provided by the
Guarantee. Notwithstanding the foregoing, the Trust shall not,
except with the consent of Holders of 100% in Liquidation Amount
of the Trust Preferred Securities, consolidate, amalgamate, merge
with or into, or be replaced by or convey, transfer or lease its
properties and assets substantially as an entirety to, any other
entity or permit any other entity to consolidate, amalgamate,
merge with or into, or replace it if such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease
would cause the Trust or the successor entity to be taxable other
than as a grantor trust for United States Federal income tax
purposes. Any merger or similar agreement shall be executed by
the Administrators on behalf of the Trust.
50
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 1001 LIMITATIONS OF RIGHTS OF HOLDERS. Except as
set forth in Section 902, the bankruptcy, dissolution,
termination, death or incapacity of any Person having an
interest, beneficial or otherwise, in Trust Securities shall not
operate to terminate this Trust Agreement, nor entitle the legal
representatives or heirs of such person or any Holder for such
person, to claim an accounting, take any action or bring any
proceeding in any court for a partition or winding-up of the
arrangements contemplated hereby, nor otherwise affect the
rights, obligations and liabilities of the parties hereto or any
of them.
Section 1002 AMENDMENT.
(a) This Trust Agreement may be amended from time to time by
the Property Trustee and the Holders of a Majority in Liquidation
Amount of the Trust Common Securities, without the consent of any
Holder of the Trust Preferred Securities (i) to cure any
ambiguity, correct or supplement any provision herein which may
be inconsistent with any other provision herein, or
to make any other provisions with respect to matters or questions
arising under this Trust Agreement; provided, however, that such
amendment shall not adversely affect in any material respect the
interests of any Holder; (ii) to facilitate the tendering,
remarketing and settlement of the trust preferred securities, as
herein contemplated (iii) to modify, eliminate or add to any
provisions of this Trust Agreement to such extent as shall be
necessary to ensure that the Trust will not be taxable other than
as a grantor trust for United States Federal income tax purposes
at any time 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 or (iv) in
accordance with the requirements of Section 812.
(b) Except as provided in Section 1002(c) hereof, any
provision of this Trust Agreement may be amended by the Property
Trustee and the Holders of a Majority in Liquidation Amount of
the Trust Common Securities with (i) the consent of Holders of at
least a Majority in Liquidation Amount of the Trust Preferred
Securities and (ii) receipt by the Trustees of an Opinion of
Counsel to the effect that such amendment or the exercise of any
power granted to the Trustees in accordance with such amendment
will not affect the Trust's being taxable as a grantor trust for
United States Federal income tax purposes or the Trust's
exemption from status of an "investment company" under the
Investment Company Act.
(c) In addition to and notwithstanding any other
provision in this Trust Agreement, without the consent of each
affected Holder (such consent being obtained in accordance with
Section 603 or 606 hereof), this Trust Agreement may not be
amended to (i) 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 (ii) restrict the right of
a Holder to institute suit for the enforcement of any such
payment on or after such date.
(d) Notwithstanding any other provisions of this
Trust Agreement, no Trustee shall enter into or consent to any
amendment to this Trust Agreement which would cause the Trust to
fail or cease to qualify for the exemption from status as an
"investment company" under the Investment Company Act or be
taxable other than as a grantor trust for United States Federal
income tax purposes.
51
(e) Notwithstanding anything in this Trust Agreement
to the contrary, without the consent of the Depositor and the
Administrators, this Trust Agreement may not be amended in a
manner which imposes any additional obligation on the Depositor
or the Administrators.
(f) In the event that any amendment to this Trust
Agreement is made, the Administrators or the Property Trustee
shall promptly provide to the Depositor a copy of such amendment.
(g) Neither the Property Trustee nor the Delaware
Trustee shall be required to enter into any amendment to this
Trust Agreement which affects its own rights, duties or
immunities under this Trust Agreement or otherwise. The Property
Trustee shall be entitled to receive an Opinion of Counsel and an
Officers' Certificate stating that any amendment to this Trust
Agreement is in compliance with this Trust Agreement.
(h) The Administrators shall give notice to the
Holders of each amendment to this Trust Agreement; provided,
however, that any failure by the Administrators to deliver, or
any defect in, such notice, shall not affect the validity or
effectiveness of any such amendment.
Section 1003 SEPARABILITY. In case any provision in this
Trust Agreement or in the Trust Securities Certificates shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
Section 1004 GOVERNING LAW.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH
OF THE HOLDERS, THE TRUST, THE DEPOSITOR, THE TRUSTEES AND THE
ADMINISTRATORS SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF DELAWARE AND ALL RIGHTS AND
REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS OF THE STATE OF DELAWARE OR ANY
OTHER JURISDICTION THAT WOULD CALL FOR THE APPLICATION OF THE LAW
OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE; PROVIDED,
HOWEVER, THAT THERE SHALL NOT BE APPLICABLE TO THE HOLDERS, THE
TRUST, THE DEPOSITOR, THE TRUSTEES, THE ADMINISTRATORS OR THIS
TRUST AGREEMENT ANY PROVISION OF THE LAWS (STATUTORY OR COMMON)
OF THE STATE OF DELAWARE PERTAINING TO TRUSTS OTHER THAN THE
DELAWARE BUSINESS TRUST ACT THAT RELATE TO OR REGULATE, IN A MANNER
INCONSISTENT WITH THE TERMS HEREOF (A) THE FILING WITH ANY COURT
OR GOVERNMENTAL BODY OR AGENCY OF TRUSTEE ACCOUNTS OR SCHEDULES
OF TRUSTEE FEES AND CHARGES, (B) AFFIRMATIVE REQUIREMENTS TO POST
BONDS FOR TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (C)
THE NECESSITY FOR OBTAINING COURT OR OTHER GOVERNMENTAL APPROVAL
CONCERNING THE ACQUISITION, HOLDING OR DISPOSITION OF REAL OR
PERSONAL PROPERTY, (D) FEES OR OTHER SUMS PAYABLE TO TRUSTEES,
OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (E) THE ALLOCATION OF
RECEIPTS AND EXPENDITURES TO INCOME OR PRINCIPAL, (F)
RESTRICTIONS OR LIMITATIONS ON THE PERMISSIBLE NATURE, AMOUNT OR
CONCENTRATION OF TRUST INVESTMENTS OR REQUIREMENTS RELATING TO
THE TITLING, STORAGE OR OTHER MANNER OF HOLDING OR INVESTING
TRUST ASSETS OR (G) THE ESTABLISHMENT OF FIDUCIARY OR OTHER
STANDARDS OF R RESPONSIBILITY OR LIMITATIONS ON THE ACTS OR
POWERS OF TRUSTEES THAT ARE INCONSISTENT WITH THE LIMITATIONS OR
LIABILITIES OR AUTHORITIES AND POWERS OF THE TRUSTEES OR THE
ADMINISTRATOR AS SET FORTH OR REFERENCED IN THIS TRUST
AGREEMENT. SECTION 3540 OF TITLE 12 OF THE
52
DELAWARE CODE SHALL NOT APPLY TO THE TRUST. NOTWITHSTANDING THE
FOREGOING, THE IMMUNITIES AND STANDARD OF CARE OF THE PROPERTY
TRUSTEE IN CONNECTION WITH THE ADMINISTRATION OF ITS TRUSTS AND
DUTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
Section 1005 PAYMENTS DUE ON NON-BUSINESS DAY. If the date
fixed for any payment on any Trust Security shall be a day that
is not a Business Day, then such payment need not be made on such
date but may be made on the next succeeding day that is a
Business Day (except as otherwise provided in Section 402(d)),
with the same force and effect as though made on the date fixed
for such payment, and no Distributions shall accumulate on such
unpaid amount for the period after such date.
Section 1006 SUCCESSORS. This Trust Agreement shall be
binding upon and shall inure to the benefit of any successor to
the Depositor, the Trust, the Administrators and any Trustee,
including any successor by operation of law. Except in connection
with a consolidation, merger or sale involving the Depositor that
is permitted under Article XII of the Indenture and pursuant to
which the assignee agrees in writing to perform the Depositor's
obligations hereunder, the Depositor shall not assign its
obligations hereunder.
Section 1007 HEADINGS. The Article and Section headings are
for convenience only and shall not affect the construction of
this Trust Agreement.
Section 1008 REPORTS, NOTICES AND DEMANDS. Any report,
notice, demand or other communication that by any provision of
this Trust Agreement is required or permitted to be given or
served to or upon any Holder or the Depositor may be given or
served in writing by deposit thereof, first class postage
prepaid, in the United States mail, hand delivery or facsimile
transmission, in each case, addressed, (a) in the case of a
Holder of Trust Preferred Securities, to such Holder as such
Holder's name and address may appear on the Securities Register;
and (b) in the case of the Holder of Trust Common Securities or
the Depositor, to _____________________________, Attention:
____________________, Facsimile No.
_____________________ or to such other address as may be
specified in a written notice by the Depositor to the Property
Trustee. Such notice, demand or other communication to or upon a
Holder shall be deemed to have been sufficiently given or made,
for all purposes, upon hand delivery, mailing or transmission.
Such notice, demand or other communication to or upon the
Depositor shall be deemed to have been sufficiently given or made
only upon actual receipt of the writing by the Depositor.
Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be
given or served to or upon the Trust, the Property Trustee, the
Delaware Trustee or, the Administrators shall be given in writing
addressed (until another address is published by the Trust) as
follows: (a) with respect to the Property Trustee to
_________________, _____________________, Attention: Corporate
Trustee Administration Department (b) with respect to the
Delaware Trustee to ___________________, ______________________,
Attention: Corporate Trustee Administration Department; (c) with
respect to the Administrators, to them at the address above for
notices to the Depositor, marked "Attention: Office of the Chief
Financial Officer" and (d) with respect to the Trust to Great Plains
Energy Capital Trust __, c/o Great Plains Energy Incorporated, 1201
Walnut, Kansas City, Missouri 64106, Attention:____________________.
Such notice, demand or other communication to or upon the Trust or
the Property Trustee shall be deemed to have been sufficiently
given or made only upon actual receipt of the writing by the Trust,
the Property Trustee, or such Administrator.
53
Section 1009 AGREEMENT NOT TO PETITION. Each of the
Trustees, the Administrators and the Depositor agree for the
benefit of the Holders that, until at least one year and one day
after the Trust has been terminated in accordance with Article
IX, they shall not file, or join in the filing of, a petition
against the Trust under any bankruptcy, insolvency,
reorganization or other similar law (including, without
limitation, the United States Bankruptcy Code) (collectively,
"Bankruptcy Laws") or otherwise join in the commencement of any
proceeding against the Trust under any Bankruptcy Law. In the
event the Depositor takes action in violation of this Section
1009, the Property Trustee agrees, for the benefit of Holders,
that at the expense of the Depositor, it shall file an answer
with the bankruptcy court or otherwise properly contest the
filing of such petition by the Depositor against the Trust or the
commencement of such action and raise the defense that the
Depositor has agreed in writing not to take such action and
should be estopped and precluded therefrom and such other
defenses, if any, as counsel for the Property Trustee or the
Trust may assert. If any Trustee or Administrator takes action
in violation of this Section 1009, the Depositor agrees,
for the benefit of the Holders, that at the expense of the
Depositor, it shall file an answer with the bankruptcy court or
otherwise properly contest the filing of such petition by
such Person against the Trust or the commencement of such action
and raise the defense that such Person has agreed in writing
not to take such action and should be estopped and
precluded therefrom and such other defenses, if any, as counsel
for the Depositor may assert. The provisions of this Section 1009
shall survive the termination of
this Trust Agreement.
Section 1010 TRUST INDENTURE ACT; CONFLICT WITH TRUST
INDENTURE ACT.
(a) Trust Indenture Act; Application. (i) This Trust
Agreement is subject to the provisions of the Trust Indenture Act
that are required to be a part of this Trust Agreement and shall,
to the extent applicable, be governed by such provisions; (ii) if
and to the extent that any provision of this Trust Agreement
limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such
imposed duties shall control; (iii) if any provision of this
Trust Agreement modifies or excludes any provision of the Trust
Indenture Act which may be so modified or excluded, the latter
provision shall be deemed to apply to this Trust Agreement as so
modified or excluded as the case may be, (iv) for purposes of
this Trust Agreement, the Property Trustee, to the extent
permitted by applicable law and/or the rules and
regulations of the Commission, shall be the only Trustee which is
a trustee for the purposes of the Trust Indenture Act; and (v)
the application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Trust Preferred
Securities and the Trust Common Securities as equity securities
representing undivided beneficial interests in the assets of the
Trust.
(b) Disclosure Information. The disclosure of
information as to the names and addresses of the Holders of Trust
Securities in accordance with Section 312 of the Trust Indenture
Act, regardless of the source from which such information was
derived, shall not be deemed to be a violation of any existing
law or any law hereafter enacted which does not specifically
refer to Section 312 of the Trust Indenture Act, nor shall the
Property Trustee be held accountable by reason of mailing any
material pursuant to a request made under Section 312(b) of the
Trust Indenture Act.
Section 1011 ACCEPTANCE OF TERMS OF TRUST AGREEMENT,
GUARANTEE AND
INDENTURE.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY
INTEREST THEREIN BY OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL
OWNER, WITHOUT
54
ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL
CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE HOLDER AND ALL
OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL
THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT, THE GUARANTEE
AND THE INDENTURE, AND THE AGREEMENT TO THE SUBORDINATION
PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND THE INDENTURE,
AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH HOLDER
AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN
THE TRUST AND SUCH HOLDER AND SUCH OTHERS.
* * * *
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but
one and the same instrument.
55
IN WITNESS WHEREOF, the parties hereto have caused this
Trust Agreement to be duly executed, all as of the day and year
first above written.
GREAT PLAINS ENERGY INCORPORATED
as Depositor
By:________________________________
Name:
Title:
[Name of Property Trustee],
as Property Trustee, and
not in its individual capacity
By:________________________________
Name:
Title:
[Name of Delaware Trustee],
as Delaware Trustee, and
not in its individual capacity
By:________________________________
Name:
Title:
Agreed to and Accepted by,
___________________________
Name:
Title:
___________________________
Name:
Title:
56
EXHIBIT A
[INSERT CERTIFICATE OF TRUST FILED WITH DELAWARE]
57
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE
DEPOSITOR OR AN AFFILIATE OF THE DEPOSITOR
IN COMPLIANCE WITH APPLICABLE LAW AND
SECTION 511 OF THE TRUST AGREEMENT
NUMBER OF TRUST
CERTIFICATE NUMBER COMMON SECURITIES
C-1 _________
($____________ AGGREGATE LIQUIDATION AMOUNT)
CERTIFICATE EVIDENCING TRUST COMMON SECURITIES
OF
GREAT PLAINS ENERGY CAPITAL TRUST __
_________% TRUST COMMON SECURITIES
(LIQUIDATION AMOUNT $______ PER TRUST COMMON SECURITY)
Great Plains Energy Capital Trust __, a statutory business
trust created under the laws of the State of Delaware, (the "Trust"),
hereby certifies that Great Plains Energy Incorporated (the "Holder")
is the registered owner of ______________________(________ ) Trust
Common Securities of the Trust representing undivided beneficial
interests in the assets of the Trust and designated as the Great
Plains Energy Capital Trust _______% Trust Common Securities
(liquidation amount $______ per Trust Common Security) (the
"Trust Common Securities"). Except in accordance with Section 511
of the Trust Agreement (as defined below) the Trust Common
Securities are not transferable and any attempted transfer hereof
other than in accordance therewith shall be void. The designations, rights,
privileges, restrictions, preferences and other terms and
provisions of the Trust Common Securities are set forth in, and
this certificate and the Trust Common Securities represented
hereby are issued and shall in all respects be subject to the
terms and provisions of, the Amended and Restated Trust Agreement
of the Trust, dated as of _______________________, as the same
may be amended from time to time (the "Trust Agreement") among
______________________, as Depositor, ___________________________, as
Property Trustee, ____________________________ , as Delaware Trustee,
the Administrators named therein and the Holders of Trust
Securities, including the designation of the terms of the Trust
Common Securities as set forth therein. The Trust will furnish a
copy of the Trust Agreement to the Holder without charge upon
written request to the Trust at its principal place of business
or registered office.
58
Upon receipt of this certificate, the Holder is bound by
the Trust Agreement and is entitled to the benefits thereunder.
Terms used but not defined herein have the meanings set
forth in the Trust Agreement.
IN WITNESS WHEREOF, one of the Administrators of the Trust
has executed this certificate this ___ day of ______________,
200_.
GREAT PLAINS ENERGY CAPITAL TRUST __
By: _______________________________
Name:
Title: Administrator
CERTIFICATE OF AUTHENTICATION:
THIS IS ONE OF THE TRUST COMMON SECURITIES REFERRED TO IN THE
WITHIN MENTIONED TRUST AGREEMENT.
________________________________,
as Property Trustee
By: _____________________________
Name:
Title: [Authorized Officer]
59
EXHIBIT C
[IF THE TRUST PREFERRED SECURITIES CERTIFICATE IS TO BE A
GLOBAL TRUST PREFERRED SECURITIES CERTIFICATE, INSERT:] This Trust
Preferred Securities Certificate is a Global Trust Preferred Securities
Certificate within the meaning of the Trust Agreement hereinafter
referred to and is registered in the name of the Depositary or a
nominee of the Depositary. This Trust Preferred Securities
Certificate is exchangeable for Trust Preferred Securities
Certificates registered in the name of a person other than the
Depositary or its nominee only in the limited circumstances
described in the Trust Agreement and may not be transferred
except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary, except in the limited
circumstances described in the Trust Agreement.
Unless this Trust Preferred Securities Certificate is
presented by an authorized representative of The Depositary Trust
Company, a New York corporation ("DTC"), to Great Plains Energy
Capital Trust __ or its agent for registration of transfer,
exchange or payment, and any Trust Preferred Securities
Certificate issued is registered in the name of Cede & Co. or
such other name as is requested by an authorized representative
of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO A PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
NO EMPLOYEE BENEFIT OR OTHER PLAN OR INDIVIDUAL RETIREMENT
ACCOUNT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (EACH,
A "PLAN"), NO ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN
ASSETS" BY REASON OF ANY PLAN'S INVESTMENT IN THE ENTITY (A "PLAN
ASSET ENTITY"), AND NO PERSON INVESTING "PLAN ASSETS" OF ANY
PLAN, MAY ACQUIRE OR HOLD THIS TRUST PREFERRED SECURITIES
CERTIFICATE OR ANY INTEREST HEREIN, UNLESS SUCH PURCHASE OR
HOLDING IS COVERED BY THE EXEMPTIVE RELIEF PROVIDED BY U.S.
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION
("PTCE") 96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE
EXEMPTION WITH RESPECT TO SUCH PURCHASE OR HOLDING. ANY PURCHASER
OR HOLDER OF THIS TRUST PREFERRED SECURITIES CERTIFICATE OR ANY
INTEREST HEREIN THAT IS A PLAN OR A PLAN ASSET ENTITY OR IS
PURCHASING SUCH SECURITIES ON BEHALF OF OR WITH "PLAN ASSETS"
WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING
HEREOF THAT (A) THE PURCHASE AND HOLDING OF THE TRUST PREFERRED
SECURITIES IS COVERED BY THE EXEMPTIVE RELIEF PROVIDED BY PTCE 96-
23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION,
(B) THE DEPOSITOR AND THE ADMINISTRATORS ARE NOT "FIDUCIARIES"
WITHIN THE MEANING OF SECTION 3(21) OF ERISA AND THE REGULATIONS
THEREUNDER, WITH RESPECT TO SUCH PERSON'S INTEREST IN THE TRUST
PREFERRED SECURITIES OR THE [SUBORDINATED] DEBT SECURITIES, AND
(C) IN PURCHASING THE TRUST PREFERRED SECURITIES SUCH PERSON
APPROVES THE PURCHASE OF THE [SUBORDINATED] DEBENTURES AND THE
APPOINTMENT OF THE TRUSTEES.
60
CERTIFICATE NUMBER AGGREGATE LIQUIDATION AMOUNT
D-1 $_____________
(__________ TRUST PREFERRED SECURITIES)
CUSIP NO. ___________________
CERTIFICATE EVIDENCING TRUST PREFERRED SECURITIES
OF
GREAT PLAINS ENERGY CAPITAL TRUST __
________% TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT $_____ PER TRUST PREFERRED SECURITY)
Great Plains Energy Capital Trust __, a statutory business
trust created under the laws of the State of Delaware (the "Trust"),
hereby certifies that ______________________ (the "Holder") is the
registered owner of _______________________ Dollars ($________) aggregate
liquidation amount of Trust Preferred Securities of the Trust
representing a preferred undivided beneficial interest in the assets of
the Trust and designated as the Great Plains Energy Capital Trust
_________% Trust Preferred Securities (liquidation amount $_______
per Trust Preferred Security) (the "Trust Preferred Securities").
The Trust Preferred Securities are transferable on the books and
records of the Trust, in person or by a duly authorized attorney,
upon surrender of this certificate duly endorsed and in proper
form for transfer as provided in Section 505 of the Trust
Agreement (as defined below). The designations, rights,
privileges, restrictions, preferences and other terms and
provisions of the Trust Preferred Securities are set forth in,
and this certificate and the Trust Preferred Securities represented
hereby are issued and shall in all respects be subject to the terms
and provisions of, the Amended and Restated Trust Agreement of the
Trust, dated as of ______________, as the same may be amended from time
to time (the "Trust Agreement"), among _______________________, as Depositor,
__________________, as Property Trustee, _____________________, as Delaware
Trustee, the Administrators named herein and the Holders of Trust Securities,
including the designation of the terms of the Trust Preferred
Securities as set forth therein. The Holder is entitled to the
benefits of the Guarantee Agreement entered into by Great Plains
Energy Incorporated, a Missouri corporation, as Guarantor, and
__________________________, as Guarantee Trustee, dated as of
___________ (the "Guarantee Agreement"), to the extent provided
therein. The Trust will furnish a copy of the Trust Agreement and
the Guarantee Agreement to the Holder without charge upon written
request to the Trust at its principal place of business or
registered office.
Upon receipt of this certificate, the Holder is bound by
the Trust Agreement and is entitled to the benefits thereunder.
Terms used but not defined herein have the meanings set
forth in the Trust Agreement.
61
IN WITNESS WHEREOF, one of the Administrators of the Trust
has executed this certificate this ____ day of _________________.
GREAT PLAINS ENERGY CAPITAL TRUST __
By: ______________________________
Name:
Title: Administrator
ADMINISTRATOR
This is one of the Trust Preferred Securities referred to in the
within mentioned Trust Agreement.
______________________________
as Property Trustee
By:___________________________
Name:
Title: [Authorized Officer]
62
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers
this Trust Preferred Security to:
____________________________________________________________
(Insert assignee's social security or tax identification number)
____________________________________________________________
____________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
___________________________________________________________
___________________________________________________________
agent to transfer this Trust Preferred Securities Certificate on
the books of the Trust. The agent may substitute another to act
for him or her.
Date:________________________
Signature:_________________________________________________
(Sign exactly as your name appears on the other side of this
Trust Preferred Securities Certificate)
The signature(s) should be guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and loan associations
and credit unions with membership in an approved signature
guarantee medallion program), pursuant to Rule 17Ad-15 of the
Securities Exchange Act of 1934.
63
Exhibit 5
Great Plains Energy Incorpoated
1201 Walnut
Kansas City, MO 64106
Ladies and Gentlemen:
As counsel to the Company, in connection with the filing by
the Company with the Securities and Exchange Commission (the
"COMMISSION") of the Registration Statement on Form S-3 (the
"REGISTRATION STATEMENT") with respect to up to $300,000,000
maximum aggregate offering price of (1) Senior Debt Securities
(the "SENIOR DEBT SECURITIES") to be issued by the Company, (2)
Subordinated Debt Securities (the "SUBORDINATED DEBT SECURITIES")
to be issued by the Company, (3) Trust Preferred Securities to be
issued by one or more business trusts (the "TRUST PREFERRED
SECUTITIES"), (4) the Company's guarantees (the "GUARANTEES")
relating to the Trust Preferred Securities, (5) Common Stock (the
"COMMON STOCK"), to be issued by the Company, (6) contracts to
purchase shares of Common Stock (the "STOCK PURCHASE CONTRACTS")
and (7) units, each comprised of a Stock Purchase Contract and
either Senior Debt Securities or Subordinated Debt Securities,
debt obligations of third parties (including U.S. Treasury
securities) or Trust Preferred Securities, in each such case
pledged to secure the holder's obligations to purchase Common
Stock under the Stock Purchase Contract (the "STOCK PURCHASE
UNITS"), together with the foregoing securities, (the
"SECURITIES"), in each case, to be issued and sold from time to
time pursuant to Rule 415 under the Securities Act of 1933, as
amended (the "SECURITIES ACT").
The Senior Debt Securities will be issued pursuant to the
form of Indenture (Exhibit 4.c) between the Company and The Bank
of New York, as trustee (the "SENIOR INDENTURE"), the
Subordinated Debt Securities will be issued pursuant to the form
of Indenture (Exhibit 4.e) between the Company and The Bank of
New York (the "SUBORDINATED INDENTURE") and the Guarantees will
be issued pursuant to one or more guarantee agreements between
the Company and the trustee named therein (each, a "GUARANTEE
AGREEMENT") (Exhibit 4.g).
I have reviewed copies of the Registration Statement
(including the exhibits thereto), the Articles of Incorporation
and By-Laws of the Company as in effect on the date hereof,
corporate and other relevant documents, records and papers. I am
a member of the Bar of the State of Missouri and, for purposes of
this opinion, do not hold
Great Plains Energy Incorporated
Page 2
myself out as an expert of the laws of any jurisdiction other than
the State of Missouri.
On the basis of such review and assuming that (i) the
applicable provisions of the Securities Act, the Trust Indenture
Act of 1939, as amended, and the securities or "blue sky" laws of
various states shall have been complied with, (ii) appropriate
resolutions have been adopted by the Board of Directors of the
Company and (iii) the applicable Securities have been issued and
sold upon the terms specified in such resolutions and in any
required orders of the Commission or other applicable regulatory
approvals, I am of the opinion that:
1. When (i) the Senior Indenture to be entered into, or
otherwise executed or adopted, in connection with the issuance of
the Senior Debt Securities, (ii) the Subordinated Indenture
executed or adopted, in connection with the issuance of the
Subordinated Debt Securities or (iii) the Guarantee Agreements,
as applicable, have been duly executed and delivered by the
proper officers of the Company and the trustees named therein,
and when the Senior Debt Securities, the Subordinated Debt
Securities and the Guarantees, as the case may be, have been duly
executed, authenticated, delivered and paid for in accordance
with the terms of the Senior Indenture, the Subordinated
Indenture and the Guarantee Agreements, respectively, and on the
terms and conditions set forth in the Registration Statement, the
prospectus contained therein and the applicable supplement
thereto, the Senior Debt Securities, the Subordinated Debt
Securities and the Guarantees will be legally issued and will
constitute the valid and binding obligations of the Company,
subject to bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting
creditors' rights.
2. When (i) the applicable Trust has been duly created, (ii)
the Trust Agreement for such Trust has been duly executed and
delivered by the proper officers of the Company, and (iii) the
Trust Preferred Securities of such Trust have been executed,
delivered and paid for in accordance with the terms of such Trust
Agreement and on the terms and conditions set forth in the
Registration Statement, the prospectus contained therein and the
applicable supplement thereto, the Trust Preferred Securities of
such Trust will represent valid, fully paid and nonassessable
undivided beneficial interests in the assets of such Trust.
3. When the Common Stock has been issued and sold on the terms
and conditions set forth in the Registration Statement, the
prospectus contained therein and the applicable supplement
Great Plains Energy Incorporated
Page 3
thereto and, if issued pursuant to Stock Purchase Contracts,
Stock Purchase Units or warrants, in accordance with the terms
thereof, and upon receipt by the Company of the full purchase
price thereof, the Common Stock will be duly authorized, validly
issued, fully paid and nonassessable.
4. When (i) the Stock Purchase Contracts or Stock Purchase
Units have been issued and sold on the terms and conditions set
forth in the Registration Statement, the prospectus contained
therein and the applicable supplement thereto and (ii) the
applicable purchase contract agreement and any related pledge
agreement have been duly authorized, executed and delivered by
the parties thereto, the Stock Purchase Contracts or Stock
Purchase Units will be valid and binding obligations of the
Company, subject to bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting
creditors' rights.
I hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the references to us
under the heading "Legal Matters" in the related prospectus.
Very truly yours,
/s/Jeanie Sell Latz
Jeanie Sell Latz
Senior Vice President-Corporate
Services and Secretary
Exhibit 23.a.
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-3 of our report dated
February 5, 2002 relating to the financial statements of Great
Plains Energy Incorporated, which appears in Great Plains
Energy Incorporated's Annual Report on Form 10-K for the year
ended December 31, 2001. We also consent to the reference to
us under the heading "Experts" in such Registration Statement.
/s/PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Kansas City, Missouri
April 29, 2002
Exhibit 23.b.
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this
Registration Statement on Form S-3 of Great Plains Energy
Incorporated of our report dated January 30, 2002 (relating
to the financial statements of DTI Holdings, Inc ("the
Company") and Subsidiaries not presented separately herein
and which report expresses an unqualified opinion and
includes explanatory paragraphs referring to the Company's
filing for reorganization under Chapter 11 of the Federal
Bankruptcy Code, substantial doubt about the Company's
ability to continue as a going concern and an impairment
charge recorded by the Company), appearing in the Annual
Report on Form 10-K of Great Plains Energy Incorporated for
the year ended December 31, 2001.
We also consent to the reference to us under the heading
"Experts" in the Prospectus, which is part of this
Registration Statement.
/s/ DELOITTE & TOUCHE LLP
St. Louis, Missouri
April 29, 2002
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned, a Director of Great Plains Energy
Incorporated, a Missouri corporation, does hereby constitute
and appoint Bernard J. Beaudoin or Jeanie S. Latz, his true
and lawful attorney and agent, with full power and authority
to execute in the name and on behalf of the undersigned as
such director a Registration Statement on Form S-3 and all
amendments thereto; hereby granting unto such attorney and
agent full power of substitution and revocation in the
premises; and hereby ratifying and confirming all that such
attorney and agent may do or cause to be done by virtue of
these presents.
IN WITNESS WHEREOF, I have hereunto set my hand and seal
this 22nd day of April, 2002.
/s/Bernard J. Beaudoin
STATE OF MISSOURI )
) ss
COUNTY OF JACKSON )
On this 22nd day of April, 2002, before me the
undersigned, a Notary Public, personally appeared Bernard J.
Beaudoin, to be known to be the person described in and who
executed the foregoing instrument, and who, being by me first
duly sworn, acknowledged that he executed the same as his
free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed my official seal the day and year last above written.
/s/Jacquetta L. Hartman
Notary Public
Ray County, Missouri
My Commission Expires:
April 8, 2004
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned, a Director of Great Plains Energy
Incorporated, a Missouri corporation, does hereby constitute
and appoint Bernard J. Beaudoin or Jeanie S. Latz, his true
and lawful attorney and agent, with full power and authority
to execute in the name and on behalf of the undersigned as
such director a Registration Statement on Form S-3 and all
amendments thereto; hereby granting unto such attorney and
agent full power of substitution and revocation in the
premises; and hereby ratifying and confirming all that such
attorney and agent may do or cause to be done by virtue of
these presents.
IN WITNESS WHEREOF, I have hereunto set my hand and seal
this 18th day of April, 2002.
/s/David L. Bodde
STATE OF MISSOURI )
) ss
COUNTY OF JACKSON )
On this 18th day of April, 2002, before me the
undersigned, a Notary Public, personally appeared David L.
Bodde, to be known to be the person described in and who
executed the foregoing instrument, and who, being by me first
duly sworn, acknowledged that he executed the same as his
free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed my official seal the day and year last above written.
/s/Jacquetta L. Hartman
Notary Public
Ray County, Missouri
My Commission Expires:
April 8, 2004
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned, a Director of Great Plains Energy
Incorporated, a Missouri corporation, does hereby constitute
and appoint Bernard J. Beaudoin or Jeanie S. Latz, his true
and lawful attorney and agent, with full power and authority
to execute in the name and on behalf of the undersigned as
such director a Registration Statement on Form S-3 and all
amendments thereto; hereby granting unto such attorney and
agent full power of substitution and revocation in the
premises; and hereby ratifying and confirming all that such
attorney and agent may do or cause to be done by virtue of
these presents.
IN WITNESS WHEREOF, I have hereunto set my hand and seal
this 22nd day of April, 2002.
/s/Mark A. Ernst
STATE OF MISSOURI )
) ss
COUNTY OF JACKSON )
On this 22nd day of April, 2002, before me the
undersigned, a Notary Public, personally appeared Mark A.
Ernst, to be known to be the person described in and who
executed the foregoing instrument, and who, being by me first
duly sworn, acknowledged that he executed the same as his
free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed my official seal the day and year last above written.
/s/Jacquetta L. Hartman
Notary Public
Ray County, Missouri
My Commission Expires:
April 8, 2004
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned, a Director of Great Plains Energy
Incorporated, a Missouri corporation, does hereby constitute
and appoint Bernard J. Beaudoin or Jeanie S. Latz, his true
and lawful attorney and agent, with full power and authority
to execute in the name and on behalf of the undersigned as
such director a Registration Statement on Form S-3 and all
amendments thereto; hereby granting unto such attorney and
agent full power of substitution and revocation in the
premises; and hereby ratifying and confirming all that such
attorney and agent may do or cause to be done by virtue of
these presents.
IN WITNESS WHEREOF, I have hereunto set my hand and seal
this 22nd day of April, 2002.
/s/William K. Hall
STATE OF MISSOURI )
) ss
COUNTY OF JACKSON )
On this 22nd day of April, 2002, before me the
undersigned, a Notary Public, personally appeared William K.
Hall, to be known to be the person described in and who
executed the foregoing instrument, and who, being by me first
duly sworn, acknowledged that he executed the same as his
free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed my official seal the day and year last above written.
/s/Jacquetta L. Hartman
Notary Public
Ray County, Missouri
My Commission Expires:
April 8, 2004
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned, a Director of Great Plains Energy
Incorporated, a Missouri corporation, does hereby constitute
and appoint Bernard J. Beaudoin or Jeanie S. Latz, his true
and lawful attorney and agent, with full power and authority
to execute in the name and on behalf of the undersigned as
such director a Registration Statement on Form S-3 and all
amendments thereto; hereby granting unto such attorney and
agent full power of substitution and revocation in the
premises; and hereby ratifying and confirming all that such
attorney and agent may do or cause to be done by virtue of
these presents.
IN WITNESS WHEREOF, I have hereunto set my hand and seal
this 11th day of April, 2002.
/s/Luis A. Jimenez
STATE OF MISSOURI )
) ss
COUNTY OF JACKSON )
On this 11th day of April, 2002, before me the
undersigned, a Notary Public, personally appeared Luis A.
Jimenez, to be known to be the person described in and who
executed the foregoing instrument, and who, being by me first
duly sworn, acknowledged that he executed the same as his
free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed my official seal the day and year last above written.
/s/Jacquetta L. Hartman
Notary Public
Ray County, Missouri
My Commission Expires:
April 8, 2004
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned, a Director of Great Plains Energy
Incorporated, a Missouri corporation, does hereby constitute
and appoint Bernard J. Beaudoin or Jeanie S. Latz, his true
and lawful attorney and agent, with full power and authority
to execute in the name and on behalf of the undersigned as
such director a Registration Statement on Form S-3 and all
amendments thereto; hereby granting unto such attorney and
agent full power of substitution and revocation in the
premises; and hereby ratifying and confirming all that such
attorney and agent may do or cause to be done by virtue of
these presents.
IN WITNESS WHEREOF, I have hereunto set my hand and seal
this 22nd day of April, 2002.
/s/William C. Nelson
STATE OF MISSOURI )
) ss
COUNTY OF JACKSON )
On this 22nd day of April, 2002, before me the
undersigned, a Notary Public, personally appeared William C.
Nelson, to be known to be the person described in and who
executed the foregoing instrument, and who, being by me first
duly sworn, acknowledged that he executed the same as his
free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed my official seal the day and year last above written.
/s/Jacquetta L. Hartman
Notary Public
Ray County, Missouri
My Commission Expires:
April 8, 2004
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned, a Director of Great Plains Energy
Incorporated, a Missouri corporation, does hereby constitute
and appoint Bernard J. Beaudoin or Jeanie S. Latz, her true
and lawful attorney and agent, with full power and authority
to execute in the name and on behalf of the undersigned as
such director a Registration Statement on Form S-3 and all
amendments thereto; hereby granting unto such attorney and
agent full power of substitution and revocation in the
premises; and hereby ratifying and confirming all that such
attorney and agent may do or cause to be done by virtue of
these presents.
IN WITNESS WHEREOF, I have hereunto set my hand and seal
this 8th day of April, 2002.
/s/Linda H. Talbott
STATE OF MISSOURI )
) ss
COUNTY OF JACKSON )
On this 8th day of April, 2002, before me the
undersigned, a Notary Public, personally appeared Linda H.
Talbott, to be known to be the person described in and who
executed the foregoing instrument, and who, being by me first
duly sworn, acknowledged that she executed the same as her
free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed my official seal the day and year last above written.
/s/Jacquetta L. Hartman
Notary Public
Ray County, Missouri
My Commission Expires:
April 8, 2004
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned, a Director of Great Plains Energy
Incorporated, a Missouri corporation, does hereby constitute
and appoint Bernard J. Beaudoin or Jeanie S. Latz, his true
and lawful attorney and agent, with full power and authority
to execute in the name and on behalf of the undersigned as
such director a Registration Statement on Form S-3 and all
amendments thereto; hereby granting unto such attorney and
agent full power of substitution and revocation in the
premises; and hereby ratifying and confirming all that such
attorney and agent may do or cause to be done by virtue of
these presents.
IN WITNESS WHEREOF, I have hereunto set my hand and seal
this 22nd day of April, 2002.
/s/Robert H. West
STATE OF MISSOURI )
) ss
COUNTY OF JACKSON )
On this 22nd day of April, 2002, before me the
undersigned, a Notary Public, personally appeared Robert H.
West, to be known to be the person described in and who
executed the foregoing instrument, and who, being by me first
duly sworn, acknowledged that he executed the same as his
free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed my official seal the day and year last above written.
/s/Jacquetta L. Hartman
Notary Public
Ray County, Missouri
My Commission Expires:
April 8, 2004