EXHIBIT (4)(r)
SECURITIES RESOLUTION NO. 1
OF
THE EMPIRE DISTRICT ELECTRIC COMPANY
I, Janet S. Watson, Secretary-Treasurer of The Empire
District Electric Company (the "Company"), do hereby certify
that the attached is a true and correct copy of Securities
Resolution No. 1 duly adopted by the President and Vice
President - Finance of the Company pursuant to authorization
delegated to them by the Board of Directors of the Company at a
meeting called and held on October 28, 1999; and I do further
certify that said resolution has not been rescinded and remains
in full force and effect.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed the corporate seal of THE EMPIRE DISTRICT ELECTRIC
COMPANY this 16th day of November, 1999.
By: /s/ Janet S. Watson
Name: Janet S. Watson
Title: Secretary-Treasurer
[CORPORATE SEAL]
7.70% Senior Notes Due 2004
SECURITIES RESOLUTION NO. 1
OF
THE EMPIRE DISTRICT ELECTRIC COMPANY
The actions described below are taken by the
President and Vice President - Finance of THE EMPIRE DISTRICT
ELECTRIC COMPANY (the "Company"), pursuant to Board (as such
term is defined in the Indenture referred to below) delegation,
in accordance with resolutions adopted by the Board of the
Company on October 28, 1999, and Section 2.01 of the Indenture
dated September 10, 1999 (the "Indenture") between the Company
and Norwest Bank Minnesota, National Association, as Trustee.
Terms used herein and not defined have the same meaning given
such terms in the Indenture.
RESOLVED, that a new series of Securities is
authorized as follows:
1. The title of the series is 7.70% Senior Notes Due 2004
(the "Notes").
2. The form of the Notes shall be substantially in form of
Exhibit 1 hereto.
3. The Notes shall have the terms set forth in Exhibit 1.
4. The Notes shall have such other terms as are set forth in
Exhibit 2 hereto.
5. The Notes shall be sold to the underwriters named in the
prospectus supplement dated November 16, 1999 on the following
terms:
Price to Public: 99.818%
Underwriting Discount: 0.600%
This Securities Resolution shall be effective as of
November 16, 1999.
/s/ Myron W. McKinney
_______________
Name: Myron W. McKinney
Title: President and Chief Executive Officer
/s/ Robert B. Fancher
__________________
Name: Robert B. Fancher
Title: Vice President - Finance
EXHIBIT 1
CUSIP 291641 AV 0
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Company or its agent for
registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or
in 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 ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.
No. $100,000,000
THE EMPIRE DISTRICT ELECTRIC COMPANY
7.70% Senior Notes Due 2004
THE EMPIRE DISTRICT ELECTRIC COMPANY
promises to pay to Cede & Co.
or registered assigns
the principal sum of One Hundred Million Dollars on November 15, 2004
Interest Payment Dates: May 15 and November 15
Record Dates: May 1 and November 1
Dated: November 19, 1999
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
Transfer Agent and Paying Agent
THE EMPIRE DISTRICT ELECTRIC COMPANY
By:
[Title of Authorized
Officer]
By:
[Title of the Authorized
Officer]
(SEAL)
Authenticated:
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
Registrar
By: _____________________________
Authorized Signature
THE EMPIRE DISTRICT ELECTRIC COMPANY
7.70% Senior Notes Due 2004
1. Interest.
The Empire District Electric Company (the "Company"),
a Kansas corporation, promises to pay interest on the
principal amount of this Security at the rate per
annum shown above. The Company will pay interest on
May 15 and November 15 of each year commencing May
15, 2000. Interest on the Securities will accrue
from the most recent date to which interest has been
paid or, if no interest has been paid, from November
19, 1999. Interest will be computed on the basis of
a 360-day year of twelve 30-day months.
2. Method of Payment.
The Company will pay interest on the Securities to
the persons who are registered holders of Securities
at the close of business on the record date for the
next interest payment date, except as otherwise
provided in the Indenture. Holders must surrender
Securities to a Paying Agent to collect principal
payments. The Company will pay principal and
interest in money of the United States that at the
time of payment is legal tender for payment of public
and private debts. The Company may pay principal and
interest by check payable in such money. It may mail
an interest check to a holder's registered address.
3. Securities Agents.
Initially, Norwest Bank Minnesota, National
Association, Attention: Corporate Trust Department,
will act as Paying Agent, Transfer Agent and
Registrar. The Company may change any Paying Agent
or Transfer Agent without notice or provide for more
than one such agent. The Company or any Affiliate
may act in any such capacity. Subject to certain
conditions, the Company may change the Trustee.
4. Indenture.
The Company issued $100,000,000 principal amount of
the securities of this series (the "Securities")
under an Indenture dated as of September 10, 1999
(the "Indenture") between the Company and Norwest
Bank Minnesota, National Association (the "Trustee").
The terms of the Securities include those stated in
the Indenture and in the Securities Resolution
creating the Securities and those made part of the
Indenture by the Trust Indenture Act of 1939 (15 U.S.
Code 77aaa-77bbbb). Securityholders are referred
to the Indenture, the Securities Resolution and the
Trust Indenture Act of 1939 for a statement of such
terms.
5. Optional Redemption.
The Company may at its option redeem all or part of
the Securities on at least 30 days, but not more than
60 days, prior notice mailed to the registered
address of each holder of Securities whose Securities
are to be redeemed. The redemption price shall equal
the greater of:
(i) 100% of the principal amount of the
Securities to be redeemed; or
(ii) the sum of the present values of the
Remaining Scheduled Payments discounted to the date
of redemption, on a semiannual basis (assuming a 360-
day year consisting of twelve 30-day months), at the
Treasury Rate plus 15 basis points
plus accrued and unpaid interest thereon to the date
of redemption.
6. Notice of Redemption.
Notice of redemption shall be mailed by first-class
mail at least 30 days but not more than 60 days
before the redemption date to each holder of
Securities to be redeemed at such holder's registered
address.
A notice of redemption may provide that it is subject
to the occurrence of any event before the date fixed
for such redemption as described in such notice
("Conditional Redemption"), and such notice of
Conditional Redemption shall be of no effect unless
all such conditions to the redemption have occurred
on or before such date or have been waived by the
Company.
7. Denominations, Transfer, Exchange.
The Securities are in registered form without coupons
in denominations of $1,000 and whole multiples of
$1,000. The transfer of Securities may be registered
and Securities may be exchanged as provided in the
Indenture. The Transfer Agent may require a holder,
among other things, to furnish appropriate
endorsements and transfer documents and to pay any
taxes and fees required by law or the Indenture. The
Transfer Agent need not exchange or register the
transfer of any Security or portion of a Security
selected for redemption. Also, it need not exchange
or register the transfer of any Securities for a
period of 15 days before a selection of Securities is
to be redeemed.
8. Persons Deemed Owners.
The registered holder of a Security may be treated as
its owner for all purposes.
9. Amendments and Waivers.
Subject to certain exceptions, the Indenture or the
Securities may be amended with the consent of the
holders of a majority in principal amount of the
securities of all series affected by the amendment.
Subject to certain exceptions, a default on a series
may be waived with the consent of the holders of a
majority in principal amount of the series.
Without the consent of any Securityholder, the
Indenture or the Securities may be amended, among
other things, to cure any ambiguity, omission, defect
or inconsistency; to provide for assumption of
Company obligations to Securityholders; or to make
any change that does not materially adversely affect
the rights of any Securityholder.
10. Restrictive Covenants.
The Securities are unsecured general obligations of
the Company limited to $100,000,000 principal amount.
The Indenture does not limit other unsecured debt.
11. Successors.
When a successor assumes all the obligations of the
Company under the Securities and the Indenture, the
Company will be released from those obligations.
12. Defeasance Prior to Redemption or Maturity.
Subject to certain conditions, the Company at any
time may terminate some or all of its obligations
under the Securities and the Indenture if the Company
deposits with the Trustee money or U.S. Government
Obligations for the payment of principal and interest
on the Securities to redemption or maturity. U.S.
Government Obligations are securities backed by the
full faith and credit of the United States of America
or certificates representing an ownership interest in
such Obligations.
13. Defaults and Remedies.
An Event of Default includes: default for 60 days in
payment of interest on the Securities; default in
payment of principal on the Securities; default for
60 days in payment or satisfaction of any sinking
fund obligation; default by the Company for a
specified period after notice to it in the
performance of any of its other agreements applicable
to the Securities; certain events of bankruptcy or
insolvency; and any other Event of Default provided
for in the series. If an Event of Default occurs and
is continuing, the Trustee or the holders of at least
25% in principal amount of the Securities may declare
the principal of all the Securities to be due and
payable immediately.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The
Trustee may require indemnity satisfactory to it
before it enforces the Indenture or the Securities.
Subject to certain limitations, holders of a majority
in principal amount of the Securities may direct the
Trustee in its exercise of any trust or power. The
Trustee may withhold from Securityholders notice of
any continuing default (except a default in payment
of principal or interest) if it determines that
withholding notice is in their interests. The
Company must furnish an annual compliance certificate
to the Trustee.
14. Trustee Dealings with Company.
Norwest Bank Minnesota, National Association, the
Trustee under the Indenture, in its individual or any
other capacity, may make loans to, accept deposits
from, and perform services for the Company or its
Affiliates, and may otherwise deal with the Company
or its Affiliates, as if it were not Trustee.
15. No Recourse Against Others.
A director, officer, employee or stockholder, as
such, of the Company shall not have any liability for
any obligations of the Company under the Securities
or the Indenture or for any claim based on, in
respect of or by reason of such obligations or their
creation. Each Securityholder by accepting a
Security waives and releases all such liability. The
waiver and release are part of the consideration for
the issue of the Securities.
16. Authentication.
This Security shall not be valid until authenticated
by a manual signature of the Registrar.
17. Abbreviations.
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as: TEN COM
(=tenants in common), TEN ENT (=tenants by the
entirety), JT TEN (=joint tenants with right of
survivorship and not as tenants in common), CUST
(=custodian), U/G/M/A (=Uniform Gifts to Minors Act)
and U/T/M/A (=Uniform Transfers to Minors Act).
The Company will furnish to any Securityholder upon written
request and without charge a copy of the Indenture and the
Securities Resolution, which contains the text of this Security
in larger type. Requests may be made to: Secretary, The
Empire District Electric Company, 602 Joplin Street, Joplin,
Missouri 64801.
EXHIBIT 2
7.70% Senior Notes due 2004
Supplemental Terms
In addition to the terms set forth in Exhibit 1 to
Securities Resolution No. 1, the 7.70% Senior Notes due 2004
(the "7.70 Notes") shall have the following terms:
Section 1. Definitions. Capitalized terms used and not
defined herein shall have the meaning given such terms in the
Indenture. The following are additional definitions applicable
to the 7.70% Notes:
"Comparable Treasury Issue" means the United States
Treasury security selected by Salomon Smith Barney Inc. or
its affiliates as having a maturity comparable to the
remaining term of the notes that would be utilized, at the
time of selection and in accordance with customary
financial practice, in pricing new issues of corporate
debt of comparable maturity to the remaining term of the
notes.
"Comparable Treasury Price" means the average of three
Reference Treasury Dealer Quotations obtained by the
trustee for the redemption date.
"Depositary" means, with respect to the 7.70% Notes issued
as a global Security, The Depository Trust Company, New
York, New York, or any successor thereto registered under
the Securities Exchange Act of 1934 or other applicable
statute or regulation.
"Reference Treasury Dealers" means Salomon Smith Barney
Inc. and its successors, so long as it or any of its
successors continues to be a primary U.S. Government
securities dealer, and any two other primary U.S.
Government securities dealers chosen by the Company. If
Salomon Smith Barney Inc. or any of its successors ceases
to be a primary U.S. Government securities dealer, the
Company will appoint in its place another nationally
recognized investment banking firm that is a primary U.S.
Government securities dealer.
"Reference Treasury Dealer Quotation" means the average,
as determined by the trustee, of the bid and asked prices
for the Comparable Treasury Issue (expressed in each case
as a percentage of its principal amount) quoted in writing
to the trustee by a Reference Treasury Dealer at 3:30
p.m., New York City time, on the third business day
preceding the redemption date.
"Remaining Scheduled Payments" means the remaining
scheduled payments of the principal and interest that
would be due if the notes selected for redemption were not
redeemed. However, if the redemption date is not a
scheduled interest payment date, the amount of the next
succeeding scheduled interest payment on these notes will
be reduced by the amount of interest accrued on these
notes to the redemption date.
"Treasury Rate" means an annual rate equal to the
semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for the
redemption date. The semiannual equivalent yield to
maturity will be computed as of the third business day
immediately preceding the redemption date.
Section 2. Securities Issuable as Global Securities.
(a) The 7.70% Notes shall be issued in the form of one or
more permanent global Securities and shall, except as otherwise
provided in this Section 2, be registered only in the name of
the Depositary or its nominee. Each global Security shall bear
a legend substantially to the following effect:
"Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Company or its agent for
registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co.
or in 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 ANY
PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein."
(b) If at any time (i) the Depositary with respect to the
7.70% Notes notifies the Company that it is unwilling or unable
to continue as Depositary for such global Security or (ii) the
Depositary for the 7.70% Notes 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
Security. If a successor Depositary for such global Security
is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such
ineligibility, the Transfer Agent shall register the exchange
of such global Security for an equal principal amount of
Registered Securities in the manner provided in Section 2.07 of
the Indenture.
(c) The Transfer Agent shall register the transfer or exchange
of a global Security for Registered Securities pursuant to
Section 2.07 of the Indenture if (i) a Default or Event of
Default shall have occurred and be continuing with respect to
the 7.70% Notes or (ii) the Company determines that the 7.70%
Notes shall no longer be represented by global Securities.
(d) In any exchange provided for in the preceding
paragraphs (b) or (c), the Company will execute and the
Registrar will authenticate and deliver Registered Securities.
Registered Securities issued in exchange for a global Security
shall be in such names and denominations as the Depositary for
such global Security shall instruct the Registrar. The
Registrar shall deliver such Registered Securities to the
persons in whose names such Securities are so registered.
Section 3. Optional Redemption. The Company may at its
option redeem all or part of the Securities on at least 30
days, but not more than 60 days, prior notice mailed to the
registered address of each holder of Securities whose
Securities are to be redeemed. The redemption price shall
equal the greater of:
(a) 100% of the principal amount of the Securities to be
redeemed; or
(b) the sum of the present values of the Remaining Scheduled
Payments discounted to the date of redemption, on a semiannual
basis (assuming a 360-day year consisting of twelve 30-day
months), at the Treasury Rate plus 15 basis points;
plus accrued and unpaid interest thereon to the date of
redemption.
On and after the redemption date, interest shall
cease to accrue on the Securities or any portion thereof called
for redemption. On or before the redemption date, the Company
shall deposit with the Paying Agent money sufficient to pay the
redemption price of and accrued interest on the Securities to
be redeemed on such date. If less than all of the Securities
are to be redeemed, the Trustee shall select the Securities, or
portions thereof, to be redeemed by a method considered by the
Trustee to be fair and appropriate.
EXHIBIT (4) (s)
SECURITIES RESOLUTION NO. 2
OF
THE EMPIRE DISTRICT ELECTRIC COMPANY
I, Janet S. Watson, Secretary-Treasurer of The Empire
District Electric Company (the "Company"), do hereby certify
that the attached is a true and correct copy of Securities
Resolution No. 2 duly adopted by the President and Vice
President - Finance of the Company pursuant to authorization
delegated to them by the Board of Directors of the Company at a
meeting called and held on February 1, 2001; and I do further
certify that said resolution has not been rescinded and remains
in full force and effect.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed the corporate seal of THE EMPIRE DISTRICT ELECTRIC
COMPANY this 22nd day of February, 2001.
By: /s/ Janet S. Watson
Name: Janet S. Watson
Title: Secretary-Treasurer
[CORPORATE SEAL]
8 1/2% Junior Subordinated Debentures due 2031
SECURITIES RESOLUTION NO. 2
OF
THE EMPIRE DISTRICT ELECTRIC COMPANY
The actions described below are taken by the
President and Vice President - Finance of THE EMPIRE DISTRICT
ELECTRIC COMPANY (the "Company"), pursuant to Board (as such
term is defined in the Indenture referred to below) delegation,
in accordance with resolutions adopted by the Board of the
Company on February 1, 2001, and Section 2.01 of the Indenture
dated September 10, 1999 (the "Indenture") between the Company
and Wells Fargo Bank Minnesota, National Association, as
Trustee. Capitalized terms used herein and not defined have
the same meaning given such terms in the Indenture.
RESOLVED, that a new series of Securities is
authorized as follows:
1. The title of the series is 8 1/2% Junior Subordinated
Debentures due 2031 (the "Debentures").
2. The form of the Debentures shall be substantially in form
of Exhibit 1 hereto.
3. The Debentures shall have the terms set forth in Exhibit
1.
4. The Debentures shall have such other terms as are set
forth in Exhibit 2 hereto.
5. The Debentures shall be sold to Empire District Electric
Trust I at a price equal to 100% of the principal amount
thereof.
This Securities Resolution shall be effective as of
February 22, 2001.
/s/ Myron W. McKinney
Name: Myron W. McKinney
Title: President and Chief Executive Officer
/s/ Robert B. Fancher
Name: Robert B. Fancher
Title: Vice President - Finance
EXHIBIT 1
No. $[ ]
THE EMPIRE DISTRICT ELECTRIC COMPANY
8 1/2% Junior Subordinated Debentures due 2031
THE EMPIRE DISTRICT ELECTRIC COMPANY
promises to pay to Wells Fargo Bank Minnesota, National
Association in its capacity as Property Trustee under the
Amended and Restated Trust Agreement dated as of March 1, 2001,
or registered assigns
the principal sum of [
] on March 1, 2031
Interest Payment Dates: March 1, June 1, September 1 and December 1
Record Dates: February 15, May 15, August 15 and November 15
Dated: March 1, 2001
WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
Transfer Agent and Paying Agent
THE EMPIRE DISTRICT ELECTRIC COMPANY
By:
[Title of Authorized
Officer]
By:
[Title of the Authorized
Officer]
(SEAL)
Authenticated:
WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
Registrar
By: _____________________________
Authorized Signature
THE EMPIRE DISTRICT ELECTRIC COMPANY
8 1/2% Junior Subordinated Debentures due 2031
1. Interest.
The Empire District Electric Company (the "Company"),
a Kansas corporation, promises to pay interest on the
principal amount of this Security at the rate per
annum shown above. The Company will pay interest on
March 1, June 1, September 1 and December 1 of each
year commencing June 1, 2001, except as otherwise
provided for in the Securities Resolution No. 2 dated
as of February 22, 2001 authorizing the creation of
the Securities (the "Securities Resolution").
Interest on the Securities will accrue from the most
recent date to which interest has been paid or, if no
interest has been paid, from March 1, 2001. Interest
will be computed on the basis of a 360-day year of
twelve 30-day months.
2. Method of Payment.
The Company will pay interest on the Securities to
the persons who are registered holders of Securities
at the close of business on the record date for the
next interest payment date, except as otherwise
provided in the Indenture or the Securities
Resolution. Holders must surrender Securities to a
Paying Agent to collect principal payments. The
Company will pay principal and interest in money of
the United States that at the time of payment is
legal tender for payment of public and private debts.
The Company may pay principal and interest by check
payable in such money. It may mail an interest check
to a holder's registered address.
3. Securities Agents.
Initially, Wells Fargo Bank Minnesota, National
Association, Attention: Corporate Trust Department,
will act as Paying Agent, Transfer Agent and
Registrar. The Company may change any Paying Agent
or Transfer Agent without notice or provide for more
than one such agent. The Company or any Affiliate
may act in any such capacity. Subject to certain
conditions, the Company may change the Trustee.
4. Indenture; Subordination.
The Company issued $51,550,000 principal amount of
the securities of this series (the "Securities")
under an Indenture dated as of September 10, 1999
(the "Indenture") between the Company and Wells Fargo
Bank Minnesota, National Association (the "Trustee").
The terms of the Securities include those stated in
the Indenture and in the Securities Resolution
creating the Securities and those made part of the
Indenture by the Trust Indenture Act of 1939 (15 U.S.
Code 77aaa-77bbbb). Securityholders are referred
to the Indenture, the Securities Resolution and the
Trust Indenture Act of 1939 for a statement of such
terms, including the provisions relating to
(i) extension of interest payments in Article IV of
Exhibit 2 to the Securities Resolution and
(ii) subordination in Article VI thereof.
Capitalized terms used herein and not defined have
the same meaning given such terms in the Indenture.
5. Optional Redemption.
On or after March 1, 2006, the Company may redeem all
the Securities at any time or some of them from time
to time at a redemption price equal to 100% of the
principal amount plus accrued and unpaid interest to
the redemption date.
6. Additional Optional Redemption.
In addition to redemptions pursuant to the above
paragraph 5, if a Special Event (as defined below)
has occurred and is continuing then the Company shall
have the right upon not less than 30 days' nor more
than 60 days' notice to the Holders of the Securities
to redeem the Securities, in whole but not in part,
for cash within 90 days following the occurrence of
such Special Event (the "90 Day Period") at a
redemption price equal to 100% of the principal
amount to be redeemed plus any accrued and unpaid
interest thereon, if any, to the date of such
redemption (the "Redemption Price"); provided,
however, that in the case of a Tax Event (as defined
below), if at the time there is available to the
Company the opportunity to eliminate, within the 90
Day Period, the Tax Event by taking some ministerial
action ("Ministerial Action"), such as filing a form
or making an election, or pursuing some other similar
reasonable measure which has no adverse effect on the
Company, Empire District Electric Trust I (the
"Trust") or the holders of the securities issued by
the Trust, the Company shall pursue such Ministerial
Action instead of redemption, and, provided, further,
that the Company shall have no right to redeem the
Securities while the Trust is pursuing any
Ministerial Action pursuant to its obligations under
the Amended and Restated Trust Agreement of the
Trust, dated as of March 1, 2001. The Redemption
Price shall be paid prior to 12:00 noon, New York
time, on the date of such redemption or such earlier
time as the Company determines, provided that the
Company shall deposit with the Trustee an amount
sufficient to pay the Redemption Price by 10:00 a.m.,
New York time, on the date such Redemption Price is
to be paid.
A "Special Event" shall mean either a Tax Event or an
Investment Company Event. "Tax Event" shall mean that
the Trust shall have received an opinion of counsel
(which may be regular counsel to the Company or an
Affiliate) experienced in such matters to the effect
that, as a result of any (a) amendment to, or change
(including any announced proposed change) in, the
laws (or any regulations thereunder) of the United
States or any political subdivision or taxing
authority thereof, or (b) official administrative
written decision, pronouncement or action or judicial
decision interpreting or applying such laws or
regulations, in each case which amendment or change
is effective or which proposed change, pronouncement,
action or decision is announced on or after the date
of issuance of the Securities, there is more than an
insubstantial risk that (i) the Trust is, or will be
within 90 days of the date of opinion of counsel,
subject to United States federal income tax with
respect to interest received on the Securities, (ii)
interest payable by the Company to the Trust on the
Securities is not, or will not within 90 days of the
date of the opinion of counsel, be deductible for
United States federal income tax purposes, or (iii)
the Trust is, or will be within 90 days of the date
of opinion of counsel, subject to more than a de
minimis amount of other taxes, duties or other
governmental charges. "Investment Company Event"
shall mean the Trust will have received 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 change in interpretation or
application of law or regulation by any legislative
body, court, governmental agency or regulatory
authority on or after the date of original issuance
of the Securities by the Trust, the Trust is or will
be considered an "investment company" that is
required to be registered under the Investment
Company Act of 1940, as amended.
7. Notice of Redemption.
Notice of redemption shall be mailed by first-class
mail at least 30 days but not more than 60 days
before the redemption date to each holder of
Securities to be redeemed at such holder's registered
address.
A notice of redemption may provide that it is subject
to the occurrence of any event before the date fixed
for such redemption as described in such notice
("Conditional Redemption"), and such notice of
Conditional Redemption shall be of no effect unless
all such conditions to the redemption have occurred
on or before such date or have been waived by the
Company.
8. Denominations, Transfer, Exchange.
The Securities are in registered form without coupons
in denominations of $25 and whole multiples of $25.
The transfer of Securities may be registered and
Securities may be exchanged as provided in the
Indenture. The Transfer Agent may require a holder,
among other things, to furnish appropriate
endorsements and transfer documents and to pay any
taxes and fees required by law or the Indenture. The
Transfer Agent need not exchange or register the
transfer of any Security or portion of a Security
selected for redemption. Also, it need not exchange
or register the transfer of any Securities for a
period of 15 days before a selection of Securities is
to be redeemed.
9. Persons Deemed Owners.
The registered holder of a Security may be treated as
its owner for all purposes.
10. Amendments and Waivers.
The Indenture and the Securities may be amended, and
any default may be waived. Subject to certain
exceptions, the Company and the Trustee may amend the
Securities and the Indenture with the written consent
of the holders of a majority in aggregate liquidation
amount of the preferred securities of the Trust whose
rights will be adversely affected by such amendment
and if the principal (and premium, if any) of the
Securities and all accrued and unpaid interest
thereon have been paid in full. Furthermore, no
amendment can be made to the provisions of the
Indenture allowing holders of preferred securities of
the Trust to sue directly following the Company's
failure to make timely payments on the Securities as
described above without the prior consent of the
holder of each preferred security of the Trust then
outstanding unless and until the principal (and
premium, if any) of the Securities and all accrued
and unpaid interest thereon have been paid in full.
Without the consent of any Securityholder, the
Indenture or the Securities may be amended, among
other things, to cure any ambiguity, omission, defect
or inconsistency; to provide for assumption of
Company obligations to Securityholders; or to make
any change that does not materially adversely affect
the rights of any Securityholder.
11. Restrictive Covenants.
The Securities are unsecured general obligations of
the Company limited to $51,550,000 principal amount.
The Indenture does not limit other unsecured debt.
12. Successors.
When a successor assumes all the obligations of the
Company under the Securities and the Indenture, the
Company will be released from those obligations.
13. Defeasance Prior to Redemption or Maturity.
Subject to certain conditions, the Company at any
time may terminate some or all of its obligations
under the Securities and the Indenture if the Company
deposits with the Trustee money or U.S. Government
Obligations for the payment of principal and interest
on the Securities to redemption or maturity. U.S.
Government Obligations are securities backed by the
full faith and credit of the United States of America
or certificates representing an ownership interest in
such Obligations.
14. Defaults and Remedies.
An Event of Default includes: default for 60 days in
payment of interest on the Securities; default in
payment of principal on the Securities; default for
60 days in payment or satisfaction of any sinking
fund obligation; default by the Company for a
specified period after notice to it in the
performance of any of its other agreements applicable
to the Securities; certain events of bankruptcy or
insolvency; and any other Event of Default provided
for in the series. If an Event of Default occurs and
is continuing, the Trustee or the holders of at least
25% in principal amount of the Securities may declare
the principal of all the Securities to be due and
payable immediately.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The
Trustee may require indemnity satisfactory to it
before it enforces the Indenture or the Securities.
Subject to certain limitations, holders of a majority
in principal amount of the Securities may direct the
Trustee in its exercise of any trust or power. The
Trustee may withhold from Securityholders notice of
any continuing default (except a default in payment
of principal or interest) if it determines that
withholding notice is in their interests. The
Company must furnish an annual compliance certificate
to the Trustee.
15. Trustee Dealings with Company.
Wells Fargo Bank Minnesota, National Association, the
Trustee under the Indenture, in its individual or any
other capacity, may make loans to, accept deposits
from, and perform services for the Company or its
Affiliates, and may otherwise deal with the Company
or its Affiliates, as if it were not Trustee.
16. No Recourse Against Others.
A director, officer, employee or stockholder, as
such, of the Company shall not have any liability for
any obligations of the Company under the Securities
or the Indenture or for any claim based on, in
respect of or by reason of such obligations or their
creation. Each Securityholder by accepting a
Security waives and releases all such liability. The
waiver and release are part of the consideration for
the issue of the Securities.
17. Authentication.
This Security shall not be valid until authenticated
by a manual signature of the Registrar.
18. Abbreviations.
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as: TEN COM
(=tenants in common), TEN ENT (=tenants by the
entirety), JT TEN (=joint tenants with right of
survivorship and not as tenants in common), CUST
(=custodian), U/G/M/A (=Uniform Gifts to Minors Act)
and U/T/M/A (=Uniform Transfers to Minors Act).
The Company will furnish to any Securityholder upon written
request and without charge a copy of the Indenture and the
Securities Resolution, which contains the text of this Security
in larger type. Requests may be made to: Secretary, The
Empire District Electric Company, 602 Joplin Street, Joplin,
Missouri 64801.
EXHIBIT 2
8 1/2% Junior Subordinated Debentures due 2031
Supplemental Terms
In addition to the terms set forth in Exhibit 1 to
Securities Resolution No. 2, the 8 1/2% Junior Subordinated
Debentures due 2031 (the "Debentures") shall have the following
terms:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms
Unless the context otherwise requires:
1. (a) a term defined in the Indenture has the same meaning
when used in this Securities Resolution;
2. (b) a term defined anywhere in this Securities Resolution
has the same meaning throughout;
3. (c) the singular includes the plural and vice versa;
4. (d) headings are for convenience of reference only and do
not affect interpretation;
5. (e) the following terms have the meanings given to them
in the Trust Agreement: (i) Administrative Trustee; (ii)
Business Day; (iii) Clearing Agency; (iv) Common Security; (v)
Delaware Trustee; (vi) Guarantee; (vii) Preferred Security;
(viii) Preferred Securities Certificate; (ix) Property Trustee;
(x) Purchase Agreement; and (xi) Trust Securities; and
6. (f) the following terms have the meanings given to them
in this Section 1.1(f):
"Additional Interest" shall have the meaning set
forth in Section 2.5(c).
"Change in 1940 Act Law" shall have the meaning set
forth in Section 3.1.
"Compounded Interest" shall have the meaning set
forth in Section 4.1.
"Coupon Rate" shall have the meaning set forth in
Section 2.5(a).
"Deferred Interest" shall have the meaning set forth
in Section 4.1.
"Depository" shall have the meaning set forth in
Section 2.8.
"Dissolution Event" means that the Trust is to be
dissolved in accordance with the Trust Agreement, and the
Debentures held by the Property Trustee are to be
distributed to the holders of the Trust Securities issued
by the Trust pro rata in accordance with the Trust
Agreement.
"Extended Interest Payment Period" shall have the
meaning set forth in Section 4.1.
"Global Debenture" shall have the meaning set forth
in Section 2.4(a).
"Interest Payment Date" shall have the meaning set
forth in Section 2.5(a).
"Investment Company Event" shall have the meaning set
forth in Section 3.1.
"Maturity Date" means the date on which the
Debentures mature and on which the principal shall be due
and payable together with all accrued and unpaid interest
thereon including Compounded Interest and Additional
Interest, if any.
"Ministerial Action" shall have the meaning set forth
in Section 3.1.
"90 Day Period" shall have the meaning set forth in
Section 3.1.
"Non Book-Entry Preferred Securities" shall have the
meaning set forth in Section 2.4(a).
"Optional Redemption Price" shall have the meaning
set forth in Section 3.2(a).
"Redemption Price" shall have the meaning set forth
in Section 3.1.
"Senior Indebtedness" means: (i) any indebtedness
(A) of the Company for money borrowed and (B) evidenced by
securities, debentures, bonds, notes or other similar
instruments issued by the Company; (ii) all capital lease
obligations of the Company; (iii) all obligations of the
Company issued or assumed as the deferred purchase price
of property, all conditional sale obligations of the
Company and all obligations of such obligor under any
title retention agreement (but excluding trade accounts
payable arising in the ordinary course of business); (iv)
all obligations of the Company for reimbursement on any
letter of credit, banker's acceptance, security purchase
facility or similar credit transaction; (v) all
obligations of the type referred to in clauses (i) through
(iv) of other Persons for the payment of which the Company
is responsible or liable as obligor, guarantor or
otherwise; and (vi) all obligations of the type referred
to in clauses (i) through (v) of other Persons secured by
any lien on any property or asset of the Company (whether
or not such obligation is assumed by the Company), except
for any such indebtedness that is by its terms
subordinated to or pari passu with the Debentures, as the
case may be. For greater certainty, "Senior Indebtedness"
includes all indebtedness for money borrowed between or
among the Company and its Affiliates, except for such
indebtedness that is by its terms subordinated to or pari
passu with the Debentures, as the case may be. Such
Senior Indebtedness shall continue to be Senior
Indebtedness and be entitled to the benefits of Article VI
hereof irrespective of any amendment, modification or
waiver of any term of such Senior Indebtedness.
"Special Event" shall have the meaning set forth in
Section 3.1.
"Tax Event" shall have the meaning set forth in
Section 3.1.
"Trust" means Empire District Electric Trust I, a
Delaware statutory business trust.
"Trust Agreement" means the Amended and Restated
Trust Agreement of the Trust, dated as of March 1, 2001.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount.
There is hereby authorized a series of Securities
designated the "8 1/2% Junior Subordinated Debentures due March 1,
2031," limited in aggregate principal amount to $51,550,000, to
be substantially in the form of Exhibit 1 to the Securities
Resolution, subject to changes in the form thereof made by the
Company and acceptable to the Trustee.
SECTION 2.2. Maturity.
The Maturity Date of the Debentures is March 1, 2031.
SECTION 2.3. Form and Payment.
Except as provided in Section 2.4, the Debentures
shall be issued in fully registered certificated form without
interest coupons in denominations of $25 or integral multiples
of $25. The place of payment for the Debentures issued in
certificated form where the transfer of such Debentures will be
registrable and where such Debentures will be exchangeable for
Debentures bearing identical terms and provisions shall be the
Corporate Trust Department of the Trustee; provided, however,
that payment of interest may be made at the option of the
Company by check mailed to the Holder at such address as shall
appear in the security register. Notwithstanding the
foregoing, so long as the Holder of any Debentures is the
Property Trustee, the payment of the principal of and interest
(including Compounded Interest and Additional Interest, if any)
on such Debentures held by the Property Trustee will be made at
such place and to such account as may be designated to the
Company in writing by the Property Trustee.
SECTION 2.4. Global Debenture.
1. (a) In connection with a Dissolution Event,
(i) the Debentures in certificated form
(other than the Debentures to be distributed to the Company as
the holder of the Common Securities) may be presented to the
Trustee by the Property Trustee in exchange for a global
Debenture in an aggregate principal amount equal to the
aggregate principal amount of all outstanding Debentures (a
"Global Debenture"), to be registered in the name of the
Depository, or its nominee, and delivered by the Trustee to the
Depository for crediting to the accounts of its participants
pursuant to the instructions of the Administrative Trustee. The
Company upon any such presentation shall execute a Global
Debenture in such aggregate principal amount and deliver the
same to the Trustee for authentication and delivery in
accordance with the Indenture and this Securities Resolution.
Payments on the Debentures issued as a Global Debenture will be
made to the Depository; and
(ii) if any Preferred Securities are held in
non book-entry certificated form, the Debentures in
certificated form (other than the Debentures to be distributed
to the Company as the holder of the Common Securities) may be
presented to the Trustee by the Property Trustee and any
Preferred Security Certificate which represents Preferred
Securities other than Preferred Securities held by the Clearing
Agency or its nominee ("Non Book-Entry Preferred Securities")
will be deemed to represent beneficial interests in Debentures
presented to the Trustee by the Property Trustee having an
aggregate principal amount equal to the aggregate liquidation
amount of the Non Book-Entry Preferred Securities until such
Preferred Security Certificates are presented to the Security
Registrar for transfer or reissuance at which time such
Preferred Security Certificates will be canceled and a
Debenture, registered in the name of the holder of the
Preferred Security Certificate or the transferee of the holder
of such Preferred Security Certificate, as the case may be,
with an aggregate principal amount equal to the aggregate
liquidation amount of the Preferred Security Certificate
canceled, will be executed by the Company and delivered to the
Trustee for authentication and delivery in accordance with the
Indenture and this Securities Resolution. On issue of such
Debentures, Debentures with an equivalent aggregate principal
amount that were presented by the Property Trustee to the
Trustee will be deemed to have been canceled.
2. (b) Unless and until it is exchanged for the Debentures
in registered form, a Global Debenture may be transferred, in
whole but not in part, only to another nominee of the
Depository, or to a successor Depository selected or approved
by the Company or to a nominee of such successor Depository.
3. (c) If at any time the Depository notifies the Company
that it is unwilling or unable to continue as Depository or if
at any time the Depository for such series shall no longer be
registered or in good standing under the Securities Exchange
Act of 1934, as amended, or other applicable statute or
regulation, and a successor Depository for such series is not
appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such condition, as the
case may be, the Company will execute, and, subject to Article
2 of the Indenture, the Trustee, upon written notice from the
Company, will authenticate and deliver the Debentures in
definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to
the principal amount of the Global Debenture in exchange for
such Global Debenture. In addition, the Company may at any time
determine that the Debentures shall no longer be represented by
the Global Debenture. In such event the Company will execute,
and subject to Section 2.02 of the Indenture, the Trustee, upon
receipt of an Officers' Certificate evidencing such
determination by the Company, will authenticate and deliver the
Debentures in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount
equal to the principal amount of the Global Debenture in
exchange for such Global Debenture. Upon the exchange of the
Global Debenture for such Debentures in definitive registered
form without coupons, in authorized denominations, the Global
Debenture shall be cancelled by the Trustee. Such Debentures in
definitive registered form issued in exchange for the Global
Debenture shall be registered in such names and in such
authorized denominations as the Depository, pursuant to
instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee shall
deliver such Debentures to the Depository for delivery to the
Persons in whose names such Debentures are so registered.
SECTION 2.5. Interest.
1. (a) Each Debenture will bear interest at the rate of 8 1/2%
per annum (the "Coupon Rate") from the original date of
issuance until the principal thereof becomes due and payable,
and on any overdue principal and (to the extent that payment of
such interest is enforceable under applicable law) on any
overdue installment of interest at the Coupon Rate, compounded
quarterly, payable (subject to the provisions of Article IV)
quarterly in arrears on March 1, June 1, September 1 and
December 1 of each year (each, an "Interest Payment Date"),
commencing on June 1, 2001, to the Person in whose name such
Debenture or any predecessor Debenture is registered at the
close of business on the regular record date for such interest
installment, which, in respect of (i) Debentures of which the
Property Trustee is the Holder and the Preferred Securities are
in book-entry only form or (ii) a Global Debenture, shall be
the close of business on the Business Day next preceding that
Interest Payment Date. Notwithstanding the foregoing sentence,
if (i) the Debentures are held by the Property Trustee and the
Preferred Securities are no longer in book-entry only form or
(ii) the Debentures are not represented by a Global Debenture,
the Company may select a regular record date for such interest
installment which shall be any date at least one Business Day
but less than sixty Business Days before an Interest Payment
Date.
2. (b) The amount of interest payable for any period will be
computed on the basis of a 360-day year of twelve 30-day
months. Except as provided in the following sentence, the
amount of interest payable for any period shorter than a full
quarterly period for which interest is computed, will be
computed on the basis of the actual number of days elapsed in
such a 90-day period. In the event that any date on which
interest is payable on the Debentures is not a Business Day,
then payment of interest payable on such date will be made on
the next succeeding day which is a Business Day (and without
any interest or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and
effect as if made on such date.
3. (c) If, at any time while the Property Trustee is the
Holder of any Debentures, the Trust or the Property Trustee is
required to pay any taxes, duties, assessments or governmental
charges of whatever nature (other than withholding taxes)
imposed by the United States, or any other taxing authority,
then, in any case, the Company will pay as additional interest
("Additional Interest") on the Debentures held by the Property
Trustee, such additional amounts as shall be required so that
the net amounts received and retained by the Trust and the
Property Trustee after paying such taxes, duties, assessments
or other governmental charges will be equal to the amounts the
Trust and the Property Trustee would have received had no such
taxes, duties, assessments or other government charges been
imposed.
SECTION 2.6. Redemption.
The Debentures are not subject to redemption at the
option of the Holder and are subject to redemption solely at
the option of the Company or otherwise as provided in
Article III hereof.
SECTION 2.7. No Sinking Fund.
The Debentures shall not be entitled to the benefit
of any sinking fund or analogous provision.
SECTION 2.8. Depository.
The Depository Trust Company (or its nominee) shall
act as the initial Depository (the "Depository") for any Global
Debenture which may be issued pursuant to this Securities
Resolution.
SECTION 2.9. Appointment of Agents.
The Company hereby appoints, or confirms the
appointment of, Wells Fargo Bank Minnesota, National
Association, as the initial Trustee, Registrar and Paying Agent
with respect to the Debentures, subject to the provisions of
the Indenture with respect to resignation, removal and
succession, and subject, further, to the right of the Company
to appoint additional agents (including Paying Agents).
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. Special Event Redemption.
If a Special Event (as defined below) has occurred
and is continuing then, notwithstanding Section 3.2(a) but
subject to Section 3.2(b), the Company shall have the right
upon not less than 30 days' nor more than 60 days' notice to
the Holders of the Debentures to redeem the Debentures, in
whole but not in part, for cash within 90 days following the
occurrence of such Special Event (the "90 Day Period") at a
redemption price equal to 100% of the principal amount to be
redeemed plus any accrued and unpaid interest thereon,
including Compounded Interest and Additional Interest, if any,
to the date of such redemption (the "Redemption Price");
provided, however, that in the case of an occurrence of a Tax
Event (as defined below), if at the time there is available to
the Company the opportunity to eliminate, within the 90 Day
Period, the Tax Event by taking some ministerial action
("Ministerial Action"), such as filing a form or making an
election, or pursuing some other similar reasonable measure
which has no adverse effect on the Company, the Trust or the
Holders of the Trust Securities issued by the Trust, the
Company shall pursue such Ministerial Action in lieu of
redemption, and, provided, further, that the Company shall have
no right to redeem the Debentures while the Trust is pursuing
any Ministerial Action pursuant to its obligations under the
Trust Agreement. The Redemption Price shall be paid prior to
12:00 noon, New York time, on the date of such redemption or at
such earlier time as the Company determines, provided that the
Company shall deposit with the Trustee an amount sufficient to
pay the Redemption Price by 10:00 a.m., New York time, on the
date such Redemption Price is to be paid.
A "Special Event" shall mean either a Tax Event or an
Investment Company Event. "Tax Event" shall mean that the
Company shall have received an opinion of counsel (which may be
regular counsel to the Company or an Affiliate, but not an
employee thereof, which must be acceptable to the Property
Trustee) experienced in such matters to the effect that, as a
result of (a) 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 affecting taxation, or
(b) any official administrative written decision, pronouncement
or action or judicial decision interpreting or applying such
laws or regulations by any court, governmental agency or
regulatory authority, in each case which amendment or change is
enacted, promulgated, issued or announced or which
interpretation or application is issued or announced on or
after the date of original issuance of Preferred Securities,
there is more than an insubstantial risk that (i) the Trust is,
or will be within 90 days of the date of the opinion of
counsel, subject to United States federal income tax with
respect to interest received on the Debentures, (ii) interest
payable by the Company to the Trust on the Debentures is not,
or will not be within 90 days of the date of the opinion of
counsel, deductible for United States federal income tax
purposes, or (iii) the Trust is, or will be within 90 days of
the date of the opinion of counsel, subject to more than a de
minimis amount of other taxes, duties, assessments or other
governmental charges. "Investment Company Event" shall mean the
occurrence of a change in law or regulation or a change in
interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory
authority (a "Change in 1940 Act Law") to the effect that the
Trust is or will be considered an "Investment Company" that is
required to be registered under the Investment Company Act of
1940, as amended, which Change in 1940 Act Law becomes
effective on or after the date of original issuance of the
Preferred Securities.
SECTION 3.2. Optional Redemption by Company
1. (a) Subject to the provisions of Section 3.2(b) and to
the provisions of Article 3 of the Indenture, except as
otherwise may be specified in this Securities Resolution, the
Company shall have the right to redeem the Debentures, in whole
or in part, from time to time, on or after March 1, 2006, upon
not less than 30 days' nor more than 60 days' notice to the
Holders of the Debentures at a redemption price equal to 100%
of the principal amount to be redeemed plus any accrued and
unpaid interest thereon, including Compounded Interest and
Additional Interest, if any, to the date of such redemption
(the "Optional Redemption Price").
If the Debentures are only partially redeemed
pursuant to this Section 3.2, the Debentures will be redeemed
pro rata or by lot or by any other method utilized by the
Trustee; provided, that if at the time of redemption the
Debentures are registered as a Global Debenture, the Depository
shall determine, in accordance with its procedures, the
principal amount of such Debentures held by each Debenture
Holder to be redeemed. The Optional Redemption Price shall be
paid prior to 12:00 noon, New York time, on the date of such
redemption or at such earlier time as the Company determines,
provided that the Company shall deposit with the Trustee an
amount sufficient to pay the Optional Redemption Price by 10:00
a.m., New York time, on the date such Optional Redemption Price
is to be paid.
2. (b) If a partial redemption of the Debentures would
result in the delisting of the Preferred Securities issued by
the Trust from any national securities exchange or other
organization on which the Preferred Securities are then listed,
the Company shall not be permitted to effect such partial
redemption and may only redeem the Debentures in whole.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period.
The Company shall have the right, at any time and
from time to time during the term of the Debentures, so long as
no Event of Default with respect to the Debentures has occurred
and is continuing, to defer payments of interest by extending
the interest payment period of such Debentures for a period not
exceeding 20 consecutive quarters (the "Extended Interest
Payment Period"), during which Extended Interest Payment Period
no interest shall be due and payable; provided that no Extended
Interest Payment Period may extend beyond the Maturity Date. To
the extent permitted by applicable law, interest, the payment
of which has been deferred because of the extension of the
interest payment period pursuant to this Section 4.1, will bear
interest thereon at the Coupon Rate compounded quarterly for
each quarter of the Extended Interest Payment Period
("Compounded Interest"). At the end of the Extended Interest
Payment Period, the Company shall pay all interest accrued and
unpaid on the Debentures, including any Additional Interest and
Compounded Interest (together, "Deferred Interest") that shall
be payable to the Holders of the Debentures in whose names the
Debentures are registered in the security register on the first
record date after the end of the Extended Interest Payment
Period. Before the termination of any Extended Interest Payment
Period, the Company may further extend such period, provided
that such period together with all such further extensions
thereof shall not exceed 20 consecutive quarters or extend
beyond the Maturity Date. Upon the termination of any Extended
Interest Payment Period and upon the payment of all Deferred
Interest then due, the Company may commence a new Extended
Interest Payment Period, subject to the foregoing requirements.
No interest shall be due and payable during an Extended
Interest Payment Period, except (i) at the end thereof and (ii)
upon a redemption of the Debentures during an Extended Interest
Payment Period, but the Company may prepay at any time all or
any portion of the interest accrued during an Extended Interest
Payment Period.
SECTION 4.2. Notice of Extension.
(a) If the Property Trustee is the only registered Holder
of the Debentures at the time the Company selects an Extended
Interest Payment Period, the Company shall give written notice
to the Administrative Trustees, the Property Trustee and the
Trustee of its selection of such Extended Interest Payment
Period at least one Business Day before the earlier of (i) the
next succeeding date on which Distributions on the Preferred
Securities issued by the Trust are payable, or (ii) the date
the Trust is required to give notice of the record date, or the
date such Distributions are payable, to the New York Stock
Exchange or other applicable self-regulatory organization or to
holders of the Preferred Securities issued by the Trust, but in
any event at least one Business Day before such record date.
(b) If the Property Trustee is not the only Holder of the
Debentures at the time the Company selects an Extended Interest
Payment Period, the Company shall give the Holders of the
Debentures and the Trustee written notice of its selection of
such Extended Interest Payment Period at least ten Business
Days before the earlier of (i) the next succeeding Interest
Payment Date, or (ii) the date the Company is required to give
notice of the record or payment date of such interest payment
to the New York Stock Exchange or other applicable self-
regulatory organization or to Holders of the Debentures.
(c) The quarter in which any notice is given pursuant to
paragraphs (a) or (b) of this Section 4.2 shall be counted as
one of the 20 quarters permitted in the maximum Extended
Interest Payment Period permitted under Section 4.1.
SECTION 4.3. Limitation of Transactions.
If (i) the Company shall exercise its right to defer
payment of interest as provided in Section 4.1, (ii) there
shall have occurred any Event of Default, as defined in the
Indenture, or (iii) the Company shall be in default with
respect to its payment obligations under the Guarantee, then
(a) the Company shall not declare or pay any dividend on, make
any distributions with respect to, or redeem, purchase, acquire
or make a liquidation payment with respect to, any of its
capital stock (other than (i) as a result of a reclassification
of its capital stock or the exchange or conversion of one class
or series of its capital stock for another class or series of
its capital stock, (ii) any payment of a dividend in connection
with the implementation of a shareholder rights plan, or the
issuance of stock under any such plan in the future, or the
redemption or repurchase of any such rights pursuant thereto,
(iii) purchases of its common stock related to the issuance of
such stock under any of the Company's benefit plans for its
directors, officers or employees, (iv) obligations under any
dividend reinvestment plan or stock purchase plan of the
Company, (v) the purchase of fractional interests in shares of
its capital stock pursuant to the conversion or exchange
provisions of such capital stock or security being converted or
exchanged or (vi) dividends or distributions in its common
stock) or make any guarantee payment with respect thereto, (b)
the Company shall not make any payment of interest, principal
or premium, if any, on or repay, repurchase or redeem any debt
securities issued by the Company which rank pari passu with or
junior to the Debentures and (c) the Company shall not make any
guarantee payments with respect to any of the payment
obligations referred to in (b) above (other than pursuant to
the Guarantee and any similar guarantee issued by the Company
on behalf of holders of preferred securities issued by an
issuer holding Securities issued under the Indenture).
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses.
In connection with the offering, sale and issuance of
the Debentures to the Property Trustee and in connection with
the sale of the Trust Securities by the Trust, the Company, in
its capacity as borrower with respect to the Debentures, shall:
(a) pay all costs and expenses relating to the offering,
sale and issuance of the Debentures, including commissions to
the underwriters payable pursuant to the Purchase Agreement and
compensation of the Trustee under the Indenture in accordance
with the provisions of Section 7.06 of the Indenture;
(b) pay all costs and expenses of the Trust (including,
but not limited to, costs and expenses relating to the
organization of the Trust, the offering, sale and issuance of
the Trust Securities (including commissions to the underwriters
in connection therewith), the fees and expenses of the Property
Trustee and the Delaware Trustee, the costs and expenses
relating to the operation of the Trust, including without
limitation, costs and expenses of accountants, attorneys,
statistical or bookkeeping services, expenses for printing and
engraving and computing or accounting equipment, paying
agent(s), registrar(s), transfer agent(s), duplicating, travel
and telephone and other telecommunications expenses and costs
and expenses incurred in connection with the acquisition,
financing, and disposition of Trust assets);
(c) be primarily liable for any indemnification
obligations arising with respect to the Trust Agreement; and
(d) pay any and all taxes (other than United States
withholding taxes attributable to the Trust or its assets) and
all liabilities, costs and expenses with respect to such taxes
of the Trust.
SECTION 5.2. Payment Upon Resignation or Removal.
Upon termination of this Securities Resolution or the
Indenture or the removal or resignation of the Trustee pursuant
to Section 7.07 of the Indenture, the Company shall pay to the
Trustee all amounts accrued to the date of such termination,
removal or resignation. Upon termination of the Trust Agreement
or the removal or resignation of the Delaware Trustee or the
Property Trustee, as the case may be, pursuant to Section 8.10
of the Trust Agreement, the Company shall pay to the Delaware
Trustee or the Property Trustee, as the case may be, all
amounts accrued to the date of such termination, removal or
resignation.
ARTICLE VI
SUBORDINATION
SECTION 6.1. Subordination.
The Company resolves, and each Holder of Debentures
issued hereunder by such Holder's acceptance thereof covenants
and agrees, that all Debentures shall be issued subject to the
provisions of this Article VI; and each Holder of a Debenture,
whether upon original issue or upon transfer or assignment
thereof, accepts and agrees to be bound by such provisions.
The payment by the Company of the principal of,
premium, if any, and interest on all Debentures issued
hereunder shall, to the extent and in the manner hereinafter
set forth, be subordinated and subject in right of payment to
the prior payment in full of all Senior Indebtedness, whether
outstanding at the date of this Securities Resolution or
thereafter incurred.
This Article shall constitute a continuing offer to
all Persons who, in reliance upon such provisions, become
holders of, or continue to hold, Senior Indebtedness, and such
provisions are made for the benefit of the holders of Senior
Indebtedness and such holders are made obligees hereunder and
they and/or each of them may enforce such provisions.
No provision of this Article VI shall prevent the
occurrence of any Default or Event of Default with respect to
the Debentures.
SECTION 6.2. Default on Senior Indebtedness.
In the event and during the continuation of any
default by the Company in the payment of principal, premium,
interest or any other amount due on any Senior Indebtedness, or
in the event that the maturity of any Senior Indebtedness has
been accelerated because of a default, then, in either case, no
payment shall be made by the Company to the Holders of the
Debentures with respect to the principal (including redemption
and sinking fund payments) of, premium, if any, interest on, or
any other amount owing in respect of, the Debentures.
In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee or any Holder of the
Debentures when such payment is prohibited by the preceding
paragraph of this Section 6.2, such payment shall be held in
trust for the benefit of, and shall be paid over or delivered
to, the holders of Senior Indebtedness or their respective
representatives, or to the trustee or trustees under any
indenture pursuant to which any of such Senior Indebtedness may
have been issued, as their respective interests may appear, but
only to the extent that the holders of the Senior Indebtedness
(or their representative or representatives or a trustee)
notify the Trustee within 90 days of such payment of the
amounts then due and owing on the Senior Indebtedness and only
the amounts specified in such notice to the Trustee shall be
paid to the holders of Senior Indebtedness.
SECTION 6.3. Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Company, or distribution of
assets of the Company of any kind or character, whether in
cash, property or securities, to creditors upon any dissolution
or winding-up or liquidation or reorganization of the Company,
whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due upon all
Senior Indebtedness shall first be paid in full, or payment
thereof provided for in money in accordance with its terms,
before any payment or distribution is made by the Company to
the Holders of the Debentures on account of the principal of,
premium, if any, interest on, or any other amount owing in
respect of, the Debentures; and upon any such dissolution or
winding-up or liquidation or reorganization, any payment by the
Company, or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, which
the Holders of the Debentures or the Trustee would be entitled
to receive from the Company, except for the provisions of this
Article VI, shall be paid by the Company or by any receiver,
trustee in bankruptcy, liquidating trustee, agent or other
Person making such payment or distribution, or by the Holders
of the Debentures or by the Trustee under this Indenture if
received by them or it, directly to the holders of Senior
Indebtedness (pro rata to such holders on the basis of the
respective amounts of Senior Indebtedness held by such holders,
as calculated by the Company) or their representative or
representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such
Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay such
Senior Indebtedness in full, in money or money's worth, after
giving effect to any concurrent payment or distribution to or
for the holders of such Senior Indebtedness, before any payment
or distribution is made to the Holders of Debentures or to the
Trustee.
In the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, prohibited
by the foregoing, shall be received by the Trustee or the
Holders of the Debentures before all Senior Indebtedness is
paid in full, or provision is made for such payment in money in
accordance with its terms, such payment or distribution shall
be held in trust for the benefit of and shall be paid over or
delivered to the holders of such Senior Indebtedness or their
representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments
evidencing such Senior Indebtedness may have been issued, as
their respective interests may appear, as calculated by the
Company, for application to the payment of all Senior
Indebtedness remaining unpaid to the extent necessary to pay
such Senior Indebtedness in full in money in accordance with
its terms, after giving effect to any concurrent payment or
distribution to or for the benefit of the holders of such
Senior Indebtedness.
For purposes of this Article VI, 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 of reorganization or readjustment, the payment of
which is subordinated at least to the extent provided in this
Article VI with respect to the Debentures to the payment of all
Senior Indebtedness that may at the time be outstanding,
provided, however, that (i) such Senior Indebtedness is assumed
by the new corporation, if any, resulting from any such
reorganization or readjustment, and (ii) the rights of the
holders of such Senior Indebtedness are not, without the
consent of such holders, altered by such reorganization or
readjustment. The consolidation of the Company with, or the
merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the
conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the
terms and conditions provided for in Article 5 of the Indenture
shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 6.3 if such
other corporation shall, as a part of such consolidation,
merger, conveyance or transfer, comply with the conditions
stated in Article 5 of the Indenture. Nothing in Section 6.2
hereof or in this Section 6.3 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.06 of
the Indenture.
SECTION 6.4. Subrogation.
Subject to the payment in full of all Senior
Indebtedness, the rights of the Holders of the Debentures shall
be subrogated to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of cash,
property or securities of the Company applicable to such Senior
Indebtedness until the principal of, premium, if any, and
interest on, and all other amounts owing in respect of, the
Debentures shall be paid in full; and, for the purposes of such
subrogation, no payments or distributions to the holders of
such Senior Indebtedness of any cash, property or securities to
which the Holders of the Debentures or the Trustee would be
entitled except for the provisions of this Article VI, and no
payment over pursuant to the provisions of this Article VI, to
or for the benefit of the holders of such Senior Indebtedness
by Holders of the Debentures or the Trustee, shall, as between
the Company, its creditors other than holders of Senior
Indebtedness, and the Holders of the Debentures be deemed to be
a payment by the Company to or on account of such Senior
Indebtedness. It is understood that the provisions of this
Article VI are and are intended solely for the purposes of
defining the relative rights of the Holders of the Debentures,
on the one hand, and the holders of Senior Indebtedness on the
other hand.
Nothing contained in this Article VI or elsewhere in
this Securities Resolution or the Indenture or in the
Debentures is intended to or shall impair, as between the
Company, its creditors other than the holders of Senior
Indebtedness, and the Holders of the Debentures, the obligation
of the Company, which is absolute and unconditional, to pay to
the Holders of the Debentures the principal of (and premium, if
any) and interest on and all other amounts owing in respect of
the Debentures as and when the same shall become due and
payable in accordance with their terms, or is intended to or
shall affect the relative rights of the Holders of the
Debentures and creditors of the Company, other than the holders
of Senior Indebtedness, nor shall anything herein or therein
prevent the Trustee or the Holder of any Debenture from
exercising all remedies otherwise permitted by applicable law
upon default under the Indenture, as amended and supplemented
by this Securities Resolution, subject to the rights, if any,
under this Article VI of the holders of such 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 of the
Company referred to in this Article VI, the Trustee, subject to
the provisions of Section 7.01 of the Indenture, and the
Holders of the Debentures, shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction in
which such dissolution, winding-up, liquidation or
reorganization proceedings are pending, or a certificate of the
receiver, trustee in bankruptcy, liquidation trustee, agent or
other Person making such payment or distribution, delivered to
the Trustee or to the Holders of the Debentures, for the
purposes of ascertaining the Persons entitled to participate in
such distribution, the holders of 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 VI.
SECTION 6.5. Trustee to Effectuate Subordination.
Each Holder of a Debenture by such Holder's
acceptance thereof authorizes and directs the Trustee on such
Holder's behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this
Article VI and appoints the Trustee as such Holder's attorney-
in-fact for any and all such purposes.
SECTION 6.6. Notice by the Company.
The Company shall give prompt written notice to a
Trust Officer of any fact known to the Company that would
prohibit the making of any payment of monies to or by the
Trustee in respect of the Debentures pursuant to the provisions
of this Article VI. Notwithstanding the provisions of this
Article VI or any other provision of the Indenture and this
Securities Resolution, the Trustee shall not be charged with
knowledge of the existence of any facts that would prohibit the
making of any payment of monies to or by the Trustee in respect
of the Debentures pursuant to the provisions of this Article VI
unless and until a Trust Officer shall have received written
notice thereof from the Company or a holder or holders of
Senior Indebtedness or from any representative or trustee
therefor; and before the receipt of any such written notice,
the Trustee, subject to the provisions of Section 7.01 of the
Indenture, shall be entitled in all respects to assume that no
such facts exist; provided, however, that if the Trustee shall
not have received the notice provided for in this Section 6.6
at least two Business Days prior to the date upon which by the
terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of
(or premium, if any) or interest on any Debenture) then,
anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such
money and to apply the same to the purposes for which they were
received, and shall not be affected by any notice to the
contrary that may be received by it within two Business Days
prior to such date.
The Trustee, subject to the provisions of Section
7.01 of the Indenture, shall be entitled to rely on the
delivery to it of a written notice by a Person representing
himself to be a holder of Senior Indebtedness (or a
representative or trustee on behalf of such holder) to
establish that such notice has been given by a holder of such
Senior Indebtedness or a representative or trustee on behalf of
any such holder or holders. In the event that the Trustee
determines in good faith that further evidence is required with
respect to the right of any Person as a holder of such Senior
Indebtedness to participate in any payment or distribution
pursuant to this Article VI, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of
the Trustee as to the amount of such Senior Indebtedness held
by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article VI,
and if such evidence is not furnished, the Trustee may defer
any payment to such Person pending judicial determination as to
the right of such Person to receive such payment.
SECTION 6.7. Rights of the Trustee; Holders of Senior Indebtedness.
The Trustee in its individual capacity shall be
entitled to all the rights set forth in this Article VI in
respect of any Senior Indebtedness at any time held by it, to
the same extent as any other holder of Senior Indebtedness, and
nothing in the Indenture or this Securities Resolution shall
deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness,
the Trustee undertakes to perform or to observe only such of
its covenants and obligations as are specifically set forth in
this Article VI, and no implied covenants or obligations with
respect to the holders of such Senior Indebtedness shall be
read into the Indenture or this Securities Resolution against
the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness and,
subject to the provisions of Section 7.01 of the Indenture, the
Trustee shall not be liable to any holder of Senior
Indebtedness if it shall pay over or deliver to Holders of
Debentures, the Company or any other Person money or assets to
which any holder of Senior Indebtedness shall be entitled by
virtue of this Article VI or otherwise.
SECTION 6.8. Subordination May Not Be Impaired.
No right of any present or future holder of any
Senior Indebtedness to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and
covenants of the Indenture or this Securities Resolution,
regardless of any knowledge thereof that any such holder may
have or otherwise be charged with.
Without in any way limiting the generality of the
foregoing paragraph, the holders of Senior Indebtedness may, at
any time and from time to time, without the consent of or
notice to the Trustee or the Holders of the Debentures, without
incurring responsibility to the Holders of the Debentures and
without impairing or releasing the subordination provided in
this Article VI or the obligations hereunder of the Holders of
the Debentures to the holders of such Senior Indebtedness, do
any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew
or alter, such Senior Indebtedness, or otherwise amend or
supplement in any manner such Senior Indebtedness or any
instrument evidencing the same or any agreement under which
such Senior Indebtedness is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged
or otherwise securing such Senior Indebtedness; (iii) release
any Person liable in any manner for the collection of such
Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
ARTICLE VII
COVENANT TO LIST ON EXCHANGE
SECTION 7.1. Listing on an Exchange.
If the Debentures are to be distributed to the
holders of Preferred Securities as described in Section 2.4(a),
the Company will, if the Debentures are not already so listed,
use its best efforts to list such Debentures on the New York
Stock Exchange or on such other exchange as the Preferred
Securities are then listed.