Exhibit 4-b
___________________________________
AMENDED AND RESTATED DECLARATION OF TRUST
KCPL FINANCING _
Dated as of ____________, 199_
___________________________________
TABLE OF CONTENTS
ARTICLE I
INTERPRETATION AND DEFINITIONS 1
SECTION 1.1. Definitions 1
ARTICLE II
TRUST INDENTURE ACT 11
SECTION 2.1. Trust Indenture Act; Application 11
SECTION 2.2. Lists of Holders of Securities 11
SECTION 2.3. Reports by the Property Trustee 12
SECTION 2.4. Periodic Reports to Property Trustee 12
SECTION 2.5. Evidence of Compliance with Conditions
Precedent 12
SECTION 2.6. Events of Default; Waiver 12
SECTION 2.7. Events of Default; Notice 14
ARTICLE III
ORGANIZATION 14
SECTION 3.1. Name 14
SECTION 3.2. Office 14
SECTION 3.3. Purpose 15
SECTION 3.4. Authority 15
SECTION 3.5. Title to Property of the Trust 15
SECTION 3.6. Powers and Duties of the Regular Trustees 15
SECTION 3.7. Prohibition of Actions by the Trust and
the Trustees 19
SECTION 3.8. Powers and Duties of the Property Trustee 19
SECTION 3.9. Certain Duties and Responsibilities of
the Property Trustee 21
SECTION 3.10. Certain Rights of Property Trustee 23
SECTION 3.11. Delaware Trustee 26
SECTION 3.12. Execution of Documents 26
SECTION 3.13. Not Responsible for Recitals or Issuance
of Securities 26
SECTION 3.14. Duration of Trust 26
SECTION 3.15. Mergers 26
ARTICLE IV
SPONSOR 28
SECTION 4.1. Sponsor's Purchase of Common Securities 28
SECTION 4.2. Responsibilities of the Sponsor 28
ARTICLE V
TRUSTEES 29
SECTION 5.1. Number of Trustees 29
SECTION 5.2. Delaware Trustee 29
SECTION 5.3. Property Trustee; Eligibility 30
SECTION 5.4. Qualifications of Regular Trustees and
Delaware Trustee Generally 30
SECTION 5.5. Initial Trustees 31
SECTION 5.6. Appointment, Removal and Resignation of
Trustees 31
SECTION 5.7. Vacancies among Trustees 33
SECTION 5.8. Effect of Vacancies 33
SECTION 5.9. Meetings 33
SECTION 5.10. Delegation of Power 34
ARTICLE VI
DISTRIBUTIONS 34
SECTION 6.1. Distributions 34
ARTICLE VII
ISSUANCE OF SECURITIES 34
SECTION 7.1. General Provisions Regarding Securities 34
ARTICLE VIII
TERMINATION OF TRUST 35
SECTION 8.1. Termination of Trust 35
ARTICLE IX
TRANSFER OF INTERESTS 36
SECTION 9.1. Transfer of Securities 36
SECTION 9.2. Transfer of Certificates 37
SECTION 9.3. Deemed Security Holders 37
SECTION 9.4. Book Entry Interests 38
SECTION 9.5. Notices to Clearing Agency 38
SECTION 9.6. Appointment of Successor Clearing Agency 39
SECTION 9.7. Definitive Preferred Security Certificates 39
SECTION 9.8. Mutilated, Destroyed, Lost or Stolen
Certificates 40
ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES,
TRUSTEES OR OTHERS 40
SECTION 10.1. Liability 40
SECTION 10.2. Exculpation 41
SECTION 10.3. Fiduciary Duty 41
SECTION 10.4. Indemnification 42
SECTION 10.5. Outside Businesses 43
ARTICLE XI
ACCOUNTING 43
SECTION 11.1. Fiscal Year 43
SECTION 11.2. Certain Accounting Matters 43
SECTION 11.3. Banking 44
SECTION 11.4. Withholding 44
ARTICLE XII
AMENDMENTS AND MEETINGS 45
SECTION 12.1. Amendments 45
SECTION 12.2. Meetings of the Holders of Securities;
Action by Written Consent 47
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE
TRUSTEE 49
SECTION 13.1. Representations and Warranties of
Property Trustee 49
SECTION 13.2. Representations and Warranties of
Delaware Trustee 49
ARTICLE XIV
MISCELLANEOUS 50
SECTION 14.1. Notices 50
SECTION 14.2. Governing Law 51
SECTION 14.3. Intention of the Parties 51
SECTION 14.4. Headings 51
SECTION 14.5. Successors and Assigns 51
SECTION 14.6. Partial Enforceability 51
SECTION 14.7. Counterparts 52
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Declaration
____________________ ___________
310(a) 5.3(a)
310(b) 5.3(c)
310(c) Inapplicable
311(c) Inapplicable
312(a) 2.2(a)
312(b) 2.2(b)
313 2.3
314(a) 2.4
314(b) Inapplicable
314(c) 2.5
314(d) Inapplicable
314(f) Inapplicable
315(a) 3.9(b)
315(b) 2.8
315(c) 3.9(a)
315(d) 3.9(a)
316(a) Exhibit A, 2.6
316(c) 3.6(e)
* This Cross-Reference Table does not
constitute part of the Declaration and shall not
affect the interpretation of any of its terms or
provisions.
EXHIBIT A
TERMS OF SECURITIES
EXHIBIT B
PREFERRED SECURITIES GUARANTEE
EXHIBIT C
UNDERWRITING AGREEMENT
AMENDED AND RESTATED DECLARATION OF TRUST
OF
KCPL FINANCING _
THIS AMENDED AND RESTATED DECLARATION OF TRUST
("Declaration"), dated and effective as of ____________,
199_, by the Trustees (as defined herein), the Sponsor (as
defined herein), and by the holders, from time to time, of
undivided beneficial interests in the Trust to be issued
pursuant to this Declaration;
W I T N E S S E T H:
WHEREAS, certain of the Trustees and the Sponsor
have heretofore established a trust (the "Trust") under the
Business Trust Act (as defined herein) pursuant to a
Declaration of Trust dated December __, 1996 (the "Original
Declaration") for the sole purpose of issuing and selling
certain securities representing undivided beneficial
interests in the assets of the Trust and investing the
proceeds thereof in certain Subordinated Debentures of the
Subordinated Debenture Issuer;
WHEREAS, all the Trustees and the Sponsor, by this
Declaration, amend and restate each and every term and
provision of the Original Declaration;
NOW, THEREFORE, it being the intention of the
parties hereto to continue the Trust as a business trust
under the Business Trust Act and that this Declaration
constitute the governing instrument of such business trust,
the Trustees declare that all assets contributed to the
Trust will be held in trust for the benefit of the holders,
from time to time, of the securities representing undivided
beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1. Definitions. Capitalized terms used
in this Declaration but not defined in the preamble above
have the respective meanings assigned to them in this
Section 1.1. A term defined anywhere in this Declaration has
the same meaning throughout. A term defined in the Trust
Indenture Act has the same meaning when used in this
Declaration unless otherwise defined in this Declaration or
unless the context otherwise requires.
Affiliate:
The term "Affiliate" has the same meaning as given
to that term in Rule 405 of the Securities Act or any
successor rule thereunder.
Authorized Officer:
The term "Authorized Officer" of a Person means
any Person that is authorized to bind such Person.
Book Entry Interest:
The term "Book Entry Interest" means a beneficial
interest in a Global Certificate, ownership and transfers of
which shall be maintained and made through book entries by a
Clearing Agency as described in Section 9.4.
Business Day:
The term "Business Day" means any day other than a
day on which banking institutions in Chicago, Illinois or
New York, New York are authorized or required by law to
close.
Business Trust Act:
The term "Business Trust Act" means Chapter 38 of
Title 12 of the Delaware Code, 12 Del. C. 3801 et seq., as
it may be amended from time to time.
Certificate:
The term "Certificate" means a Common Security
Certificate or a Preferred Security Certificate.
Clearing Agency:
The term "Clearing Agency" means an organization
registered as a "Clearing Agency" pursuant to Section 17A of
the Exchange Act that is acting as depository for the
Preferred Securities and in whose name, or in the name of a
nominee of that organization, shall be registered a Global
Certificate and which shall undertake to effect book entry
transfers and pledges of the Preferred Securities.
Clearing Agency Participant:
The term "Clearing Agency Participant" means a
broker, dealer, bank, other financial institution or other
Person for whom, from time to time, the Clearing Agency
effects book entry transfers and pledges of securities
deposited with the Clearing Agency.
Closing Date:
The term "Closing Date" means _____________, 199_.
Code:
The term "Code" means the Internal Revenue Code of
1986.
Common Security:
The term "Common Security" has the meaning
specified in Section 7.1.
Common Security Certificate:
The term "Common Security Certificate" means a
definitive certificate in fully registered form representing
a Common Security substantially in the form of Annex II to
Exhibit A.
Covered Person:
The term "Covered Person" means:
(a) any officer, director, shareholder, part
ner, member, representative, employee or agent of:
(i) the Trust; or
(ii) the Trust's Affiliates; and
(b) any Holder of Securities.
Debenture Issuer:
The term "Debenture Issuer" means KCPL, in its
capacity as the issuer of the Subordinated Debentures.
Debenture Trustee:
The term "Debenture Trustee" means The First
National Bank of Chicago, as trustee under the Indenture,
until a successor is appointed thereunder and thereafter
means such successor trustee.
Delaware Trustee:
The term "Delaware Trustee" has the meaning set
forth in Section 5.2.
Definitive Preferred Security Certificates:
The term "Definitive Preferred Security
Certificates" has the meaning set forth in Section 9.4.
Direction:
The term "Direction" by a Person means a written
direction signed:
(a) if the Person is a natural person,
by that Person; or
(b) in any other case, in the name of such
Person by one or more Authorized Officers of that
Person.
Distribution:
The term "Distribution" means a distribution
payable to Holders of Securities in accordance with Section
6.1.
DTC:
The term "DTC" means The Depository Trust Company,
the initial Clearing Agency.
Event of Default:
The term "Event of Default" in respect of the
Securities means an Indenture Default has occurred and is
continuing in respect of the Subordinated Debentures.
Exchange Act:
The term "Exchange Act" means the Securities
Exchange Act of 1934.
Global Certificate:
The term "Global Certificate" has the meaning set
forth in Section 9.4.
Holder:
The term "Holder" means the Person in whose name a
Certificate representing a Security is registered, such
Person being a beneficial owner within the meaning of the
Business Trust Act; provided, however, that in determining
whether Holders of the requisite liquidation amount of
Preferred Securities have voted on any matter provided for
in this Declaration, then for the purpose of such
determination only (and not for any other purpose
hereunder), if the Preferred Securities remain in the form
of one or more Global Certificates, the term "Holder" shall
mean the holder of the Global Certificate acting at the
direction of the Preferred Security Beneficial Owners.
Indemnified Person:
The term "Indemnified Person" means any Trustee,
any Affiliate of any Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives
or agents of any Trustee, or any employee or agent of the
Trust or its Affiliates.
Indenture:
The term "Indenture" means the Indenture dated as
of ___________, 199_ between the Debenture Issuer and the
Debenture Trustee, and any amendment thereto and any
indenture supplemental thereto pursuant to which the
Subordinated Debentures are to be issued.
Indenture Default:
The term "Indenture Default" means an "Event of
Default" as such term is defined in the Indenture.
Investment Company:
The term "Investment Company" means an investment
company as defined in the Investment Company Act.
Investment Company Act:
The term "Investment Company Act" means the
Investment Company Act of 1940.
KCPL:
The term "KCPL" means Kansas City Power & Light
Company, a Missouri corporation, or any successor entity in
a merger or consolidation.
Legal Action:
The term "Legal Action" has the meaning set forth
in Section 3.6(g).
Majority in liquidation amount of the Securities:
The term "Majority in liquidation amount of the
Securities" means, except as provided in the terms of the
Preferred Securities or the Trust Indenture Act, Holder(s)
of outstanding Securities voting together as a single class
or, as the context may require, Holder(s) of outstanding
Preferred Securities or outstanding Common Securities voting
separately as a class, representing more than 50% of the
aggregate stated liquidation amount (including the stated
amount that would be paid on redemption, liquidation or
maturity, plus accrued and unpaid Distributions to the date
upon which the voting percentages are determined) of all
outstanding Securities of such class.
Officers' Certificate:
The term "Officers' Certificate" means, with
respect to any Person, a certificate signed by two
Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a
condition or covenant provided for in this Declaration shall
include:
(a) a statement that each such officer
signing the Certificate has read the covenant or
condition and the definition(s) relating thereto;
(b) a brief statement of the nature and
scope of the examination or investigation
undertaken by each such officer in rendering the
Certificate;
(c) a statement that each such officer has
made such examination or investigation as, in such
officer's opinion, is necessary to enable such
officer to express an informed opinion as to
whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the
opinion of each such officer, such condition or
covenant has been complied with.
Paying Agent:
The term "Paying Agent" has the meaning specified
in Section 3.8(i).
Person:
The term "Person" means any individual,
corporation, partnership, limited liability company, joint
venture, joint stock company, unincorporated association or
government or any agency or political subdivision thereof,
or any other entity of whatever nature.
Preferred Securities Guarantee:
The term "Preferred Securities Guarantee" means
the Preferred Securities Guarantee Agreement to be dated as
of ____________, 199_ of the Sponsor in respect of the
Preferred Securities in the form of Exhibit B.
Preferred Security:
The term "Preferred Security" has the meaning
specified in Section 7.1.
Preferred Security Beneficial Owner:
The term "Preferred Security Beneficial Owner"
means, with respect to a Book Entry Interest, a Person who
is the beneficial owner of such Book Entry Interest, as
reflected on the books of the Clearing Agency, or on the
books of a Person maintaining an account with such Clearing
Agency (directly as a Clearing Agency Participant or as an
indirect participant, in each case in accordance with the
rules of such Clearing Agency).
Preferred Security Certificate:
The term "Preferred Security Certificate" means a
certificate representing a Preferred Security substantially
in the form of Annex I to Exhibit A.
Property Trustee:
The term "Property Trustee" means the Trustee
meeting the eligibility requirements set forth in Section
5.3.
Property Trustee Account:
The term "Property Trustee Account" has the
meaning set forth in Section 3.8(c)(i).
Quorum:
The term "Quorum" means a majority of the Regular
Trustees or, if there are only two Regular Trustees, both of
them.
Regular Trustee:
The term "Regular Trustee" means any Trustee other
than the Property Trustee and the Delaware Trustee.
Related Party:
The term "Related Party" means, with respect to
the Sponsor, any direct or indirect wholly owned subsidiary
of the Sponsor or any other Person which owns, directly or
indirectly, 100% of the outstanding voting securities of the
Sponsor.
Responsible Officer:
The term "Responsible Officer", when used with
respect to the Property Trustee, means the chairman of the
board of directors, the President, any Vice President, the
Secretary, the Treasurer, any trust officer or, any
corporate trust officer or any other officer or assistant
officer of the Property Trustee customarily performing
functions similar to those performed by any of the persons
who at the time shall be such officers, respectively, or to
whom any corporate trust matter is referred because of that
officer's knowledge of and familiarity with the particular
subject.
Rule 3a-5:
The term "Rule 3a-5" means Rule 3a-5 under the
Investment Company Act.
Securities:
The term "Securities" mean the Common Securities
and the Preferred Securities.
Securities Act:
The term "Securities Act" means the Securities
Act of 1933, as amended.
66-2/3% in liquidation amount of the Securities:
The term "66-2/3% in liquidation amount of the
Securities" means, except as provided in the terms of the
Preferred Securities or the Trust Indenture Act, Holder(s)
of outstanding Securities voting together as a single class
or, as the context may require, Holder(s) of outstanding
Preferred Securities or outstanding Common Securities,
voting separately as a class, representing 66-2/3% of the
aggregate stated liquidation amount (including the stated
amount that would be paid on redemption, liquidation or
maturity, plus accrued and unpaid Distributions to the date
upon which the voting percentages are determined) of all
outstanding Securities of such class.
Sponsor:
The term "Sponsor" means KCPL, in its capacity as
sponsor of the Trust.
Subordinated Debentures:
The term "Subordinated Debentures" means the
series of Subordinated Debentures to be issued by the
Debenture Issuer under the Indenture to the Property Trustee
for the benefit of the Trust and the Holders.
Successor Property Trustee:
The term "Successor Property Trustee" means a
successor Trustee possessing the qualifications to act as
Property Trustee under Section 5.3(a).
10% in liquidation amount of the Securities:
The term "10% in liquidation amount of the
Securities" means, except as provided in the terms of the
Preferred Securities or the Trust Indenture Act, Holder(s)
of outstanding Securities voting together as a single class
or, as the context may require, Holder(s) of outstanding
Preferred Securities or outstanding Common Securities,
voting separately as a class, representing 10% of the
aggregate stated liquidation amount (including the stated
amount that would be paid on redemption, liquidation or
maturity, plus accrued and unpaid Distributions to the date
upon which the voting percentages are determined) of all
outstanding Securities of such class.
Tax Event:
The term "Tax Event" means a "Tax Event" as
defined in the Indenture.
Treasury Regulations:
The term "Treasury Regulations" means the income
tax regulations including temporary and proposed
regulations, promulgated under the Code by the United States
Treasury Department, as amended.
Trustee or Trustees:
The terms "Trustee" or "Trustees" means each
Person who has signed this Declaration as a trustee, so long
as such Person shall continue in office in accordance with
the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in
accordance with the provisions hereof, and references herein
to a Trustee or the Trustees shall refer to such Person or
Persons solely in their capacity as trustees hereunder.
Trust Indenture Act:
The term "Trust Indenture Act" means the Trust
Indenture Act of 1939.
Underwriting Agreement:
The term "Underwriting Agreement" means the
Underwriting Agreement for the offering and sale of
Preferred Securities in the form of Exhibit C.
SECTION 1.2. Interpretation. Each definition in
this Declaration includes the singular and the plural, and
references to the neuter gender include the masculine and
feminine where appropriate. Terms which relate to
accounting matters shall be interpreted in accordance with
generally accepted accounting principles in effect from time
to time. References to any statute mean such statute as
amended at the time and include any successor legislation.
The word "or" is not exclusive, and the words "herein,"
"hereof" and "hereunder" refer to this Declaration as a
whole. The headings to the Articles and Sections are for
convenience of reference and shall not affect the meaning or
interpretation of this Declaration. References to Articles,
Sections, Annexes and Schedules mean the Articles, Sections,
Annexes and Schedules of this Declaration. The Annexes, if
any, and Schedules are hereby incorporated by reference into
and shall be deemed a part of this Declaration.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the
Trust Indenture Act that are required to be part of this
Declaration and shall, to the extent applicable, be governed
by such provisions.
(b) The Property Trustee shall be the only Trustee
which is a trustee for the purposes of the Trust Indenture
Act. If and to the extent that any provision of this
Declaration limits, qualifies or conflicts with the duties
imposed by sections 310 to 317, inclusive, of the Trust
Indenture Act, such imposed duties shall control.
(c) The application of the Trust Indenture Act to
this Declaration shall not affect the nature of the
Securities as equity securities representing undivided
beneficial interests in the assets of the Trust.
SECTION 2.2. Lists of Holders of Securities. (a)
Each of the Sponsor and the Regular Trustee(s) on behalf of
the Trust shall provide the Property Trustee (i) within
fourteen (14) days after each record date for payment of
Distributions a list, in such form as the Property Trustee
may reasonably require, of the names and addresses of the
Holders of the Securities ("List of Holders") as of such
record date, provided that none of the Sponsor or the
Regular Trustees on behalf of the Trust shall be obligated
to provide such List of Holders at any time the List of
Holders does not differ from the most recent List of Holders
given to the Property Trustee by the Sponsor and the Regular
Trustees on behalf of the Trust, and (ii) at any other time,
within thirty (30) days of receipt by the Trust of a written
request for a List of Holders as of a date no more than
fourteen (14) days before such List of Holders is given to
the Property Trustee. The Property Trustee shall preserve,
in as current a form as is reasonably practicable, all
information contained in Lists of Holders given to it or
which it receives in its capacity as Paying Agent (if acting
in such capacity) provided that the Property Trustee may
destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Property Trustee shall comply with its
obligations under sections 311(a), 311(b) and 312(b) of the
Trust Indenture Act.
SECTION 2.3. Reports by the Property Trustee.
Within 60 days after May 15 of each year, the Property
Trustee shall provide to the Holders of the Preferred
Securities such reports, if any, as are required by Section
313 of the Trust Indenture Act, in the form and in the
manner and to the Person or Persons provided by section 313
of the Trust Indenture Act.
SECTION 2.4. Periodic Reports to Property
Trustee. Each of the Sponsor and the Regular Trustees on
behalf of the Trust shall provide to the Property Trustee
such documents, reports and information as required by
section 314 (if any) and the compliance certificate as
required by section 314 of the Trust Indenture Act.
SECTION 2.5. Evidence of Compliance with
Conditions Precedent. Each of the Sponsor and the Regular
Trustees on behalf of the Trust shall provide to the
Property Trustee such evidence of compliance with the
conditions precedent, if any, provided for in this
Declaration which relate to any of the matters set forth in
section 314(c) of the Trust Indenture Act. Any certificate
or opinion required to be given by an officer pursuant to
section 314(c)(1) may be given in the form of an Officers'
Certificate.
SECTION 2.6. Events of Default; Waiver. (a) The
Holders of a Majority in liquidation amount of Preferred
Securities may, by vote, on behalf of the Holders of all of
the Preferred Securities, waive any past Event of Default in
respect of the Preferred Securities and its consequences,
provided that if the Event of Default:
(i) is not waivable under the Indenture, the
Event of Default under this Declaration shall also not
be waivable; or
(ii) requires the consent or vote of greater than
a majority in principal amount of the holders of the
Subordinated Debentures (a "Super-Majority") to be
waived under the Indenture, the Event of Default under
this Declaration may only be waived by the vote of the
Holders of at least the proportion in liquidation
amount of the Preferred Securities that the relevant
Super Majority represents to the aggregate principal
amount of the Subordinated Debentures outstanding.
Upon such waiver, any such default shall cease to exist, and
any Event of Default with respect to the Preferred
Securities arising therefrom shall be deemed to have been
cured, for every purpose of this Declaration, but no such
waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon.
Any waiver by the Holders of the Preferred Securities of an
Event of Default with respect to the Preferred Securities
shall also be deemed to constitute a waiver by the Holders
of the Common Securities of any such Event of Default with
respect to the Common Securities for all purposes of this
Declaration without any further act, vote, or consent of the
Holders of the Common Securities.
(b) The Holders of a Majority in liquidation
amount of the Common Securities may, by vote, on behalf of
the Holders of all of the Common Securities, waive any past
Event of Default in respect of the Common Securities and its
consequences, provided that if the Event of Default:
(i) is not waivable under the Indenture, except
where the Holders of the Common Securities are deemed
to have waived such Event of Default under this
Declaration as provided below, the Event of Default
under this Declaration is not waivable; or
(ii) requires the consent or vote of all of the
holders of the Subordinated Debentures to be waived,
the Event of Default under this Declaration may only be
waived by the vote of all of the Holders of the Pre
ferred Securities, provided that each Holder of Common
Securities will be deemed to have waived any such Event
of Default and all Events of Default with respect to
the Common Securities and its consequences until all
Events of Default with respect to the Preferred
Securities have been cured, waived or otherwise
eliminated and until such Events of Default have been
so cured, waived or otherwise eliminated, the Property
Trustee will be deemed to be acting solely on behalf of
the Holders of the Preferred Securities and only the
Holders of the Preferred Securities will have the right
to direct the Property Trustee in accordance with the
terms of the Securities. Subject to the foregoing
proviso, upon such waiver, any such default shall cease
to exist, and any Event of Default with respect to the
Common Securities arising therefrom shall be deemed to
have been cured, for every purpose of this Declaration,
but no such waiver shall extend to any subsequent or
other default or Event of Default with respect to the
Common Securities or impair any right consequent
thereon.
(c) A waiver of an Event of Default under the
Indenture by the Property Trustee at the direction of the
Holders of the Preferred Securities constitutes a waiver of
the corresponding Event of Default under this Declaration.
SECTION 2.7. Events of Default; Notice. (a) The
Property Trustee shall, within 90 days after the occurrence
of an Event of Default, transmit by mail, first class
postage prepaid, to the Holders of the Securities, notices
of all defaults with respect to the Securities known to the
Property Trustee, unless such defaults have been cured
before the giving of such notice (the term "defaults", for
the purposes of this Section 2.7(a), is hereby defined as an
Event of Default as defined in the Indenture, not including
any periods of grace provided for therein and irrespective
of the giving of any notice provided therein); provided
that, except for a default in the payment of the principal
of (or the premium, if any) or the interest on any of the
Subordinated Debentures or in the payment of any sinking
fund installment established for the Subordinated
Debentures, the Property Trustee shall be protected in
withholding such notice if and so long as the board of
directors, the executive committee, or a trust committee of
directors and/or Responsible Officers, of the Property
Trustee in good faith determine that the withholding of such
notice is in the interests of the Holders of the Securities.
(b) The Property Trustee shall not be deemed to
have knowledge of any default except:
(i) a default arising under Sections 6.01(a)(1)
and 6.01(a)(2) of the Indenture; or
(ii) any default as to which the Property Trustee
shall have received written notice or of which a
Responsible Officer of the Property Trustee charged
with the administration of this Declaration shall have
obtained written notice.
ARTICLE III
ORGANIZATION
SECTION 3.1. Name. The Trust is named "KCPL
Financing __", as such name may be modified from time to
time by the Regular Trustees following written notice to the
Holders of Securities. The Trust's activities may be
conducted under the name of the Trust or any other name
deemed advisable by the Regular Trustees.
SECTION 3.2. Office. The address of the
principal office of the Trust is 1201 Walnut, Kansas City,
Missouri 64106-2124. On ten Business Days written notice to
the Holders of Securities, the Regular Trustees may
designate another principal office.
SECTION 3.3. Purpose. The exclusive purposes and
functions of the Trust are (a) to issue and sell Securities
and use the proceeds from such sale to acquire the
Subordinated Debentures and (b) except as otherwise limited
herein, to engage in only those other activities necessary
or incidental thereto. The Trust shall not borrow money,
issue debt or reinvest proceeds derived from investments,
pledge any of its assets, or otherwise undertake (or permit
to be undertaken) any activity that would cause the Trust
not to be classified for United States federal income tax
purposes as a grantor trust.
SECTION 3.4. Authority. Subject to the
limitations provided in this Declaration and to the specific
duties of the Property Trustee, the Regular Trustees shall
have exclusive and complete authority to carry out the
purposes of the Trust. An action taken by the Regular
Trustees in accordance with their powers shall constitute
the act of and serve to bind the Trust, and an action taken
by the Property Trustee in accordance with its powers shall
constitute the act of and serve to bind the Trust. In
dealing with a Trustee or the Trustees acting on behalf of
the Trust, no Person shall be required to inquire into the
authority of such Trustee or Trustees to bind the Trust.
Persons dealing with the Trust are entitled to rely
conclusively on the power and authority of a Trustee or the
Trustees as set forth in this Declaration.
SECTION 3.5. Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the
Subordinated Debentures and the Property Trustee Account or
as otherwise provided in this Declaration, legal title to
all assets of the Trust shall be vested in the Trust. The
Holders shall not have legal title of any part of the assets
of the Trust, but shall have an undivided beneficial
interest in the assets of the Trust.
SECTION 3.6. Powers and Duties of the Regular
Trustees. The Regular Trustees shall have the exclusive
power and authority and duty to cause the Trust to engage in
the following activities:
(a) to issue and sell the Preferred Securities
and the Common Securities in accordance with this
Declaration; provided, however, that the Trust may
issue no more than one series of Preferred Securities
and no more than one series of Common Securities, and,
provided further, there shall be no interests in the
Trust other than the Securities and the issuance of
Securities shall be limited to a one-time, simultaneous
issuance of both Preferred Securities and Common
Securities on the Closing Date;
(b) in connection with the issue and sale of the
Preferred Securities, at the direction of the Sponsor,
to:
(i) execute and file with the Securities and
Exchange Commission (the "Commission") the
registration statement on Form S-3 prepared by the
Sponsor in relation to the Preferred Securities,
including any amendments thereto prepared by the
Sponsor;
(ii) execute and file any documents prepared
by the Sponsor, or take any acts as determined by
the Sponsor as necessary in order to qualify or
register all or part of the Preferred Securities
in any state in which the Sponsor has determined
to qualify or register such Preferred Securities
for sale;
(iii) execute and file an application pre
pared by the Sponsor to the New York Stock
Exchange, Inc. or any other national stock
exchange or the Nasdaq Stock Market's National
Market for listing upon notice of issuance of any
Preferred Securities;
(iv) execute and file with the Commission a
registration statement on Form 8-A prepared by the
Sponsor relating to the registration of the class
of Preferred Securities under Section 12(b) of the
Exchange Act, including any amendments thereto
prepared by the Sponsor; and
(v) execute and enter into the Underwriting
Agreement providing for the sale of the Preferred
Securities;
(c) to acquire the Subordinated Debentures with
the proceeds of the sale of the Preferred Securities
and the Common Securities; provided, however, that the
Regular Trustees shall cause legal title to the
Subordinated Debentures to be held of record in the
name of the Property Trustee for the benefit of the
Trust and the Holders of the Preferred Securities and
the Holders of the Common Securities;
(d) to give the Sponsor and the Property Trustee
prompt written notice of the occurrence of a Tax Event,
provided that the Regular Trustees shall consult with
the Sponsor and the Property Trustee before taking any
Ministerial Action in relation to a Tax Event;
(e) to establish a record date with respect to
all actions to be taken hereunder that require a record
date to be established, including for the purposes of
section 316(c) of the Trust Indenture Act and with
respect to Distributions, voting rights, redemptions
and exchanges, and to issue relevant notices to the
Holders of Preferred Securities and the Holders of
Common Securities as to such actions and applicable
record dates;
(f) to take all actions and perform such duties
as may be required of the Regular Trustees pursuant to
the terms of the Securities;
(g) to bring or defend, pay, collect, compromise,
arbitrate, resort to legal action, or otherwise adjust
claims or demands of or against the Trust ("Legal
Action"), unless pursuant to Section 3.8(f), the
Property Trustee has the exclusive power to bring such
Legal Action;
(h) to employ or otherwise engage employees and
agents (who may be designated as officers with titles)
and managers, contractors, advisors and consultants and
pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's
obligations under the Trust Indenture Act;
(j) to give the certificate to the Property
Trustee required by section 314(a)(4) of the Trust
Indenture Act, which certificate may be executed by any
Regular Trustee;
(k) to incur expenses which are necessary or
incidental to carry out any of the purposes of the
Trust;
(l) to act as, or appoint another Person to act
as, transfer agent for the Securities;
(m) to give prompt written notice to the Holders
of the Securities of any notice received from the
Debenture Issuer of its election (i) to defer payments
of interest on the Subordinated Debentures by extending
the interest payment period under the Indenture or (ii)
to shorten the scheduled maturity date on the
Subordinated Debentures;
(n) to execute all documents or instruments,
perform all duties and powers, and do all things for
and on behalf of the Trust in all matters necessary or
incidental to the foregoing;
(o) to take all action which may be necessary or
appropriate for the preservation and the continuation
of the Trust's valid existence, rights, franchises and
privileges as a statutory business trust under the laws
of the State of Delaware and of each other jurisdiction
in which such existence is necessary to protect the
limited liability of the Holders of the Securities or
to enable the Trust to effect the purposes for which
the Trust was created;
(p) to take any action, not inconsistent with
this Declaration or with applicable law, which the
Regular Trustees determine in their discretion to be
necessary or desirable in carrying out the activities
of the Trust as set out in this Section 3.6 including,
but not limited to:
(i) causing the Trust not to be deemed to be
an Investment Company required to be registered
under the Investment Company Act;
(ii) causing the Trust to be characterized
for United States federal income tax purposes as a
grantor trust and causing each Holder of
Securities to be treated as owning an undivided
beneficial interest in the Subordinated
Debentures; and
(iii) co-operating with the Debenture Issuer
to ensure that the Subordinated Debentures will be
treated as indebtedness of the Debenture Issuer
for United States federal income tax purposes,
provided that such action does not adversely affect the
interests of the Holders; and
(q) to take all action necessary to cause all
applicable tax returns and tax information reports that
are required to be filed with respect to the Trust to
be duly prepared and filed by the Regular Trustees, on
behalf of the Trust.
The Regular Trustees must exercise the powers set forth in
this Section 3.6 in a manner which is consistent with the
purposes and functions of the Trust set out in Section 3.3
and the Regular Trustees shall not take any action which is
inconsistent with the purposes and functions of the Trust
set forth in Section 3.3.
Subject to this Section 3.6, the Regular Trustees
shall have none of the powers or the authority of the
Property Trustee set forth in Section 3.8.
SECTION 3.7. Prohibition of Actions by the Trust
and the Trustees. The Trust shall not, and the Trustees (in
cluding the Property Trustee) shall cause the Trust not to,
engage in any activity other than as required or authorized
by this Declaration. In particular, the Trust shall not,
and the Trustees (including the Property Trustee) shall
cause the Trust not to:
(i) invest any proceeds received by the Trust from
holding the Subordinated Debentures but shall
distribute all such proceeds to Holders of Securities
pursuant to the terms of this Declaration and of the
Securities;
(ii) acquire any assets other than as expressly
provided herein;
(iii) possess Trust property for other than a
Trust purpose;
(iv) make any loans or incur any indebtedness
other than loans represented by the Subordinated
Debentures;
(v) possess any power or otherwise act in such a
way as to vary the Trust assets or the terms of the
Securities in any way whatsoever;
(vi) issue any securities or other evidences of
beneficial ownership of, or beneficial interest in, the
Trust other than the Securities; or
(vii) consent to the modification of the
Subordinated Debentures or any other asset of the
Trust, unless the Trust shall have received an opinion
of counsel to the effect that such modification will
not cause more than an insubstantial risk that for
United States federal income tax purposes the Trust
will not be characterized as a grantor trust.
SECTION 3.8. Powers and Duties of the Property
Trustee. (a) The legal title to the Subordinated
Debentures shall be owned by and held of record in the name
of the Property Trustee in trust for the benefit of the
Trust and the Holders of the Securities. The right, title
and interest of the Property Trustee to the Subordinated
Debentures shall vest automatically in each Person who may
hereafter be appointed as Property Trustee as set forth in
Section 5.6. Such vesting and cessation of title shall be
effective whether or not conveyancing documents with respect
to the Subordinated Debentures have been executed and
delivered.
(b) The Property Trustee shall not transfer its
right, title and interest in the Subordinated Debentures to
the Regular Trustees or to the Delaware Trustee (if the
Property Trustee does not also act as Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-
interest bearing bank account (the "Property Trustee
Account") in the name of and under the exclusive
control of the Property Trustee on behalf of the
Holders of the Securities and, upon the receipt of
payments of funds made in respect of the Subordinated
Debentures held by the Property Trustee, deposit such
funds into the Property Trustee Account and make
payments to the Holders of the Preferred Securities and
the Holders of the Common Securities from the Property
Trustee Account in accordance with Section 6.1. Funds
in the Property Trustee Account shall be held unin
vested until disbursed in accordance with this
Declaration. The Property Trustee Account shall be an
account which is maintained with a banking institution
the rating on whose long-term unsecured indebtedness is
at least equal to the rating assigned to the Preferred
Securities by a "nationally recognized statistical
rating organization", as that term is defined for
purposes of Rule 436(g)(2) under the Securities Act;
(ii) engage in such ministerial activities as
shall be necessary or appropriate to effect the
redemption of the Preferred Securities and the Common
Securities to the extent the Subordinated Debentures
are redeemed or mature; and
(iii) upon notice of distribution issued by the
Regular Trustees in accordance with the terms of the
Preferred Securities and the Common Securities, engage
in such ministerial activities as shall be necessary or
appropriate to effect the distribution of the
Subordinated Debentures to Holders of Securities upon
the liquidation and dissolution of the Trust.
(d) The Property Trustee shall take all actions
and perform such duties as may be specifically required of
the Property Trustee pursuant to the terms of the Secu
rities.
(e) The Property Trustee shall hold the Preferred
Securities Guarantee for the benefit of the Holders of the
Preferred Securities.
(f) The Property Trustee shall take any Legal
Action which arises out of or in connection with an Event of
Default or the Property Trustee's duties and obligations
under this Declaration (including the Preferred Securities
Guarantee) or the Trust Indenture Act.
(g) The Property Trustee shall continue to serve
as a Trustee until either:
(i) the Trust has been completely liquidated and
the proceeds of the liquidation distributed to the
Holders of Securities pursuant to the terms of the
Securities; or
(ii) a Successor Property Trustee has been
appointed and accepted that appointment in accordance
with Section 5.6.
(h) The Property Trustee shall have the legal
power to exercise all of the rights, powers and privileges
of a holder of Subordinated Debentures under the Indenture
and, if an Event of Default occurs and is continuing, the
Property Trustee shall, for the benefit of the Holders of
the Securities, enforce its rights under the Indenture with
respect to the Subordinated Debentures and its rights under
the Preferred Securities Guarantee in accordance with the
terms of the Preferred Securities Guarantee, subject to the
rights of the Holders pursuant to the terms of such
Securities and the Preferred Securities Guarantee.
(i) The Property Trustee may authorize one or
more Persons (each, a "Paying Agent") to pay Distributions,
redemption payments or liquidation payments on behalf of the
Trust with respect to the Preferred Securities and the
Common Securities and any such Paying Agent shall comply
with section 317(b) of the Trust Indenture Act. Any Paying
Agent may be removed by the Property Trustee at any time and
a successor Paying Agent or additional Paying Agents may be
appointed at any time by the Property Trustee.
(j) Subject to this Section 3.8, the Property
Trustee shall have none of the powers or the authority of
the Regular Trustees set forth in Section 3.6.
The Property Trustee must exercise the powers set
forth in this Section 3.8 in a manner which is consistent
with the purposes and functions of the Trust set forth in
Section 3.3 and the Property Trustee shall not take any
action which is inconsistent with the purposes and functions
of the Trust set out in Section 3.3.
SECTION 3.9. Certain Duties and Responsibilities
of the Property Trustee. (a) The Property Trustee, before
the occurrence of any Event of Default and after the curing
of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically
set forth in this Declaration and in the terms of the
Securities, and no implied covenants shall be read into this
Declaration against the Property Trustee. In case an Event
of Default has occurred (that has not been cured or waived
pursuant to Section 2.6), the Property Trustee shall
exercise such of the rights and powers vested in it by this
Declaration, 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 his or her own
affairs.
(b) No provision of this Declaration shall be con
strued to relieve the Property Trustee from liability for
its own negligent action, its own negligent failure to act,
or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of
Default and after the curing or waiving of all such
Events of Default that may have occurred:
(A) the duties and obligations of the
Property Trustee shall be determined solely by the
express provisions of this Declaration and in the
terms of the Securities, and the Property Trustee
shall not be liable except for the performance of
such duties and obligations as are specifically
set forth in this Declaration, and no implied
covenants or obligations shall be read into this
Declaration against the Property Trustee; and
(B) in the absence of bad faith on the part
of the Property Trustee, the Property Trustee may
conclusively rely, as to the truth of the state
ments and the correctness of the opinions
expressed therein, upon any certificates or
opinions furnished to the Property Trustee and
conforming to the requirements of this
Declaration; but in the case of any such
certificates or opinions that by any provision
hereof are specifically required to be furnished
to the Property Trustee, the Property Trustee
shall be under a duty to examine the same to de
termine whether or not they conform to the
requirements of this Declaration;
(ii) the Property Trustee shall not be liable for
any error of judgment made in good faith by a
Responsible Officer of the Property Trustee, unless it
shall be proved that the Property Trustee was negligent
in ascertaining the pertinent facts upon which such
judgment was made;
(iii) 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 not less than a Majority in liquidation
amount of the Securities at the time outstanding
relating to the time, method and place of conducting
any proceeding for any remedy available to the Property
Trustee, or exercising any trust or power conferred
upon the Property Trustee under this Declaration;
(iv) no provision of this Declaration shall re
quire the Property Trustee to expend or risk its own
funds or otherwise incur personal financial liability
in the performance of any of its duties or in the
exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of
such funds or liability is not reasonably assured to it
under the terms of this Declaration or adequate
indemnity against such risk is not reasonably assured
to it;
(v) the Property Trustee's sole duty with respect
to the custody, safe keeping and physical preservation
of the Subordinated Debentures and the Property Trustee
Account shall be to deal with such property in a
similar manner as the Property Trustee deals with
similar property for its own account, subject to the
protections and limitations on liability afforded to
the Property Trustee under this Declaration and the
Trust Indenture Act;
(vi) the Property Trustee shall have no duty or
liability for or with respect to the value,
genuineness, existence or sufficiency of the
Subordinated Debentures or the payment of any taxes or
assessments levied thereon or in connection therewith;
(vii) the Property Trustee shall not be liable
for any interest on any money received by it except as
it may otherwise agree with the Sponsor. Money held by
the Property Trustee need not be segregated from other
funds held by it except in relation to the Property
Trustee Account maintained by the Property Trustee
pursuant to Section 3.8(c)(i) and except to the extent
otherwise required by law; and
(viii) the Property Trustee shall not be
responsible for monitoring the compliance by the
Regular Trustees or the Sponsor with their respective
duties under this Declaration, nor shall the Property
Trustee be liable for the default or misconduct of the
Regular Trustees or the Sponsor.
SECTION 3.10. Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may rely and shall be
fully protected in acting or refraining from acting
upon any resolution, certificate, statement, in
strument, opinion, report, notice, request, direction,
consent, order, approval, bond, security or other paper
or document believed by it to be genuine and to have
been signed, sent or presented by the proper party or
parties.
(ii) Any direction or act of the Sponsor or the
Regular Trustees contemplated by this Declaration shall
be sufficiently evidenced by a Direction or an
Officers' Certificate.
(iii) Whenever in the administration of this
Declaration the Property Trustee shall deem it
desirable that a matter be proved or established before
taking, suffering or omitting any action hereunder, the
Property Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad
faith on its part and, if the Trust is excluded from
the definition of an Investment Company solely by means
of Rule 3a-5, subject to the requirements of Rule 3a-5,
request and rely upon an Officers' Certificate which,
upon receipt of such request, shall be promptly
delivered by the Sponsor or the Regular Trustees.
(iv) The Property Trustee shall have no duty to
see to any recording, filing or registration of any
instrument (or any rerecording, refiling or reregistra
tion thereof).
(v) The Property Trustee may consult with counsel
and the written advice or opinion of such counsel with
respect to legal matters shall be full and complete
authorization and protection in respect of any action
taken or suffered or omitted by it hereunder in good
faith and in accordance with such advice or opinion.
Such counsel may be counsel to the Sponsor or any of
its Affiliates and may include any of its employees.
The Property Trustee shall have the right at any time
to seek instructions concerning the administration of
this Declaration from any court of competent
jurisdiction.
(vi) The Property Trustee shall be under no
obligation to exercise any rights or powers vested in
it under this Declaration at the request or direction
of any Holder, unless such Holder shall have provided
to the Property Trustee reasonable security or indemni
ty against the costs, expenses (including attorneys'
fees and expenses) and liabilities that might be in
curred by it in complying with such request or
direction, including such reasonable advances as may be
requested by the Property Trustee, provided that
nothing contained in this Section 3.10(a)(vi) shall,
however, relieve the Property Trustee, upon the occur
rence of an Event of Default, from exercising the
rights and powers vested in it by this Declaration.
(vii) The Property Trustee shall not be bound to
make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent,
order, approval, bond, security or other papers or doc
uments, but the Property Trustee, in its discretion,
may make such further inquiry or investigation into
such facts or matters as it may see fit.
(viii) The Property Trustee may execute any of the
trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or
attorneys, and the Property Trustee shall not be
responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care
by it hereunder.
(ix) Any action taken by the Property Trustee or
its agents hereunder shall bind the Trust and the
Holders of the Securities, and the signature of the
Property Trustee or its agents alone shall be
sufficient and effective to perform any such action.
No third party shall be required to inquire as to the
authority of the Property Trustee to so act or as to
its compliance with any of the terms and provisions of
this Declaration, both of which shall be conclusively
evidenced by the Property Trustee's or its agent's
taking such action.
(x) Whenever in the administration of this
Declaration the Property Trustee shall deem it
desirable to receive instructions with respect to
enforcing any remedy or right or taking any other
action hereunder, the Property Trustee (i) may request
instructions from the Holders of the Securities
representing the aggregate liquidation amount of all
outstanding Securities of such class required under the
terms of the Securities to direct the Property Trustee
to enforce such remedy or right or take such action,
(ii) may refrain from enforcing such remedy or right or
taking such other action until such instructions are
received and (iii) shall be protected in acting in
accordance with such instructions.
(b) No provision of this Declaration shall be
deemed to impose any duty or obligation on the Property
Trustee to perform any act or acts or exercise any right,
power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the
Property Trustee shall be unqualified or incompetent in
accordance with applicable law, to perform any such act or
acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to
the Property Trustee shall be construed to be a duty.
SECTION 3.11. Delaware Trustee. Notwithstanding
any other provision of this Declaration other than Section
5.2, 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 Trustees described in
this Declaration. Except as set forth in Section 5.2, the
Delaware Trustee shall be a Trustee for the sole and limited
purpose of fulfilling the requirements of Section 3807 of
the Business Trust Act.
SECTION 3.12. Execution of Documents. Unless
otherwise determined by the Regular Trustees, a majority of,
or if there are only two, both of the Regular Trustees are
authorized to execute on behalf of the Trust any documents
which the Regular Trustees have the power and authority to
execute pursuant to Section 3.6, provided that any listing
application prepared by the Sponsor referred to in Section
3.6(b)(iii) may be executed by any Regular Trustee.
SECTION 3.13. Not Responsible for Recitals or
Issuance of Securities. The recitals contained in this
Declaration and the Securities shall be taken as the
statements of the Sponsor and the Trustees do not assume any
responsibility for their correctness. The Trustees make no
representations as to the value or condition of the property
of the Trust or any part thereof. The Trustees make no
representations as to the validity or sufficiency of this
Declaration or the Securities.
SECTION 3.14. Duration of Trust. The Trust,
unless terminated pursuant to the provisions of Article VIII
hereof, shall have existence for forty-five (45) years from
the Closing Date.
SECTION 3.15. Mergers. (a) The Trust may not
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 corporation or other
body, except as described in Section 3.15(b) and (c).
(b) The Trust may, with the consent of the
Regular Trustees or, if there are more than two, a majority
of the Regular Trustees and without the consent of the
Property Trustee, the Delaware Trustee or the Holders of
the Securities, consolidate, amalgamate, merge with or into,
or be replaced by a trust organized as such under the laws
of any State; provided that:
(i) such successor entity (the "Successor
Entity") either:
(A) expressly assumes all of the obligations
of the Trust under the Securities; or
(B) substitutes for the Securities other se
curities having substantially the same terms as
the Preferred Securities and Common Securities,
respectively (the "Successor Securities"), so long
as the Successor Securities rank the same as the
Preferred Securities and Common Securities rank
with respect to Distributions and payments upon
liquidation, redemption, maturity and otherwise;
(ii) the Debenture Issuer expressly acknowledges a
trustee of the Successor Entity which possesses the
same powers and duties as the Property Trustee as the
Holder of the Subordinated Debentures;
(iii) the Preferred Securities or any Successor
Securities thereof are listed, or any such Successor
Securities will be listed upon notification of issu
ance, on any national securities exchange or other
organization on which the Preferred Securities are then
listed;
(iv) such merger, consolidation, amalgamation or
replacement does not cause the Preferred Securities (in
cluding any Successor Securities thereof) to be
downgraded by any nationally recognized statistical
rating organization;
(v) such merger, consolidation, amalgamation or
replacement does not adversely affect the rights, pref
erences and privileges of the Holders of the Securities
(including any Successor Securities) in any material
respect (other than with respect to any dilution of the
Holders' interest in the new entity);
(vi) such Successor Entity has a purpose identical
to that of the Trust;
(vii) prior to such merger, consolidation,
amalgamation or replacement, the Sponsor has received
an opinion from independent counsel to the Trust experi
enced in such matters to the effect that:
(A) such merger, consolidation, amalgamation
or replacement does not adversely affect the
rights, preferences and privileges of the Holders
of the Securities (including any Successor Securi
ties) in any material respect (other than with
respect to any dilution of the Holders' interest
in the new entity); and
(B) following such merger, consolidation,
amalgamation or replacement, neither the Trust nor
the Successor Entity will be required to register
as an Investment Company; and
(viii) the Sponsor guarantees the obligations of
such Successor Entity under the Successor Securities of
the Preferred Securities at least to the extent
provided by the Preferred Securities Guarantee.
(c) Notwithstanding Section 3.15(b), the Trust
shall not consolidate, amalgamate, merge with or into, or be
replaced by any other entity or permit any other entity to
consolidate, amalgamate, merge with or into, or replace it
if such consolidation, amalgamation, merger or replacement
would cause the Trust or Successor Entity for United States
federal income tax purposes to be classified as other than a
grantor trust and each Holder of the Securities not to be
treated as owning an undivided beneficial interest in the
Subordinated Debentures, except with the consent of Holders
of 100% in liquidation amount of the Securities.
ARTICLE IV
SPONSOR
SECTION 4.1. Sponsor's Purchase of Common
Securities. On the Closing Date, the Sponsor will purchase
all of the Common Securities issued by the Trust, in an
amount equal to approximately 3% of the capital of the Trust
at the same time as the Preferred Securities are sold.
SECTION 4.2. Responsibilities of the Sponsor. In
connection with the issue and sale of the Preferred
Securities, the Sponsor shall have the exclusive right and
responsibility to engage in the following activities:
(a) to prepare for filing by the Trust with the
Commission a registration statement on Form S-3 in
relation to the Preferred Securities, including any
amendments thereto;
(b) to determine the states in which to take
appropriate action to qualify or register for sale all
or part of the Preferred Securities and to take any and
all such acts, other than actions which must be taken
by the Trust, and advise the Trust of actions it must
take, and prepare for execution and filing any
documents to be executed and filed by the Trust, as the
Sponsor deems necessary or advisable in order to comply
with the applicable laws of any such states;
(c) to prepare for filing by the Trust an applica
tion to the New York Stock Exchange, Inc. or any other
national stock exchange or the Nasdaq Stock Market's
National Market for listing upon notice of issuance of
any Preferred Securities;
(d) to prepare for filing by the Trust with the
Commission a registration statement on Form 8-A
relating to the registration of the class of Preferred
Securities under Section 12(b) of the Exchange Act,
including any amendments thereto; and
(e) to negotiate the terms of the Underwriting
Agreement providing for the sale of the Preferred
Securities.
ARTICLE V
TRUSTEES
SECTION 5.1. Number of Trustees. The number of
Trustees shall initially be four (4), and:
(a) at any time before the issuance of any Se
curities, the Sponsor may, by written instrument,
increase or decrease the number of Trustees; and
(b) after the issuance of any Securities, the
number of Trustees may be increased or decreased by
vote of the Holders of a Majority in liquidation amount
of the Common Securities voting as a class at a meeting
of the Holders of the Common Securities;
provided that in any case, the number of Trustees shall be
at least four (4) unless the Trustee that acts as the
Property Trustee also acts as the Delaware Trustee pursuant
to Section 5.2, in which case the number of Trustees shall
be at least three (3).
SECTION 5.2. Delaware Trustee. If required by
the Business Trust Act, one Trustee (the "Delaware Trustee")
shall be:
(a) a natural person who is a resident of the
State of Delaware; or
(b) if not a natural person, an entity which has
its principal place of business in the State of
Delaware and otherwise meets the requirements of
applicable law,
provided that if the Property Trustee has its principal
place of business in the State of Delaware and otherwise
meets the requirements of applicable law, then the Property
Trustee shall also be the Delaware Trustee and Section 3.11
shall have no application.
SECTION 5.3. Property Trustee; Eligibility. (a)
There shall at all times be one Trustee which shall act as
Property Trustee and which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing
business under the laws of the United States of America
or any state or territory thereof or of the District of
Columbia, or a corporation or Person permitted by the
Commission to act as an institutional trustee under the
Trust Indenture Act, authorized under such laws to
exercise corporate trust powers, having a combined
capital and surplus of at least fifty million U.S.
dollars ($50,000,000), and subject to supervision or
examination by federal, state, territorial or District
of Columbia authority (if such corporation publishes re
ports of condition at least annually, pursuant to law
or to the requirements of the supervising or examining
authority referred to above, then for the purposes of
this Section 5.3(a)(ii), the combined capital and
surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most
recent report of condition so published).
(b) If at any time the Property Trustee shall
cease to be eligible to so act under Section 5.3(a), the
Property Trustee shall immediately resign in the manner and
with the effect set out in Section 5.6(c).
(c) If the Property Trustee has or shall acquire
any "conflicting interest" within the meaning of Section
310(b) of the Trust Indenture Act, the Property Trustee and
the Holders of the Common Securities (as if they were the
obligor referred to in Section 310(b) of the Trust Indenture
Act) shall in all respects comply with the provisions of
Section 310(b) of the Trust Indenture Act.
SECTION 5.4. Qualifications of Regular Trustees
and Delaware Trustee Generally. Each Regular Trustee and
the Delaware Trustee (unless the Property Trustee also acts
as Delaware Trustee) shall be either a natural person who is
at least twenty-one (21) years of age or a legal entity
which shall act through one or more Authorized Officers.
SECTION 5.5. Initial Trustees. The initial
Regular Trustees shall be:
John J. DeStefano
1201 Walnut
Kansas City, Missouri 64106-2124
Andrea F. Bielsker
1201 Walnut
Kansas City, Missouri 64106-2124
The initial Property Trustee shall be:
The First National Bank of Chicago
One First National Plaza
Suite 0126
Chicago, Illinois 60603
The initial Delaware Trustee shall be:
First Chicago Delaware Inc.
300 King Street
Wilmington, Delaware 19801
SECTION 5.6. Appointment, Removal and Resignation
of Trustees. (a) Subject to Section 5.6(b), Trustees may
be appointed or removed without cause at any time:
(i) until the issuance of any Securities, by
written instrument executed by the Sponsor; and
(ii) after the issuance of any Securities, by vote
of the Holders of a Majority in liquidation amount of
the Common Securities, voting as a class at a meeting
of the Holders of the Common Securities.
(b) (i) The Trustee that acts as Property Trustee
shall not be removed in accordance with Section 5.6(a)
until a Successor Property Trustee has been appointed
and has accepted such appointment by written instrument
executed by such Successor Property Trustee and
delivered to the Regular Trustees and the Sponsor; and
(ii) the Trustee that acts as Delaware Trustee
shall not be removed in accordance with Section 5.6(a)
until a successor Trustee possessing the qualifications
to act as Delaware Trustee under Sections 5.2 and 5.4
(a "Successor Delaware Trustee") has been appointed and
has accepted such appointment by written instrument
executed by such Successor Delaware Trustee and de
livered to the Regular Trustees and the Sponsor.
(c) A Trustee appointed to office shall hold
office until the successor of such Trustee shall have been
appointed or until the death, removal or resignation of such
Trustee. Any Trustee may resign from office (without need
for prior or subsequent accounting) by an instrument in
writing signed by the Trustee and delivered to the Sponsor
and the Trust, which resignation shall take effect upon such
delivery or upon such later date as is specified therein;
provided, however, that:
(i) no such resignation of the Trustee that acts
as the Property Trustee shall be effective until:
(A) a Successor Property Trustee has been
appointed and has accepted such appointment by
instrument executed by such Successor Property
Trustee and delivered to the Trust and the
Sponsor; or
(B) until the assets of the Trust have been
completely liquidated and the proceeds thereof
distributed to the holders of the Securities; and
(ii) no such resignation of the Trustee that acts
as the Delaware Trustee shall be effective until a
Successor Delaware Trustee has been appointed and has
accepted such appointment by instrument executed by
such Successor Delaware Trustee and delivered to the
Trust and the Sponsor.
(d) The Holders of the Common Securities shall
use their best efforts to promptly appoint a Successor
Delaware Trustee or Successor Property Trustee as the case
may be if the Property Trustee or the Delaware Trustee
delivers an instrument of resignation in accordance with
this Section 5.6.
(e) If no Successor Property Trustee or Successor
Delaware Trustee shall have been appointed and accepted
appointment as provided in this Section 5.6 within 60 days
after delivery to the Sponsor and the Trust of an instrument
of resignation, the resigning Property Trustee or Delaware
Trustee, as applicable, may petition any court of competent
jurisdiction for appointment of a Successor Property Trustee
or Successor Delaware Trustee. Such court may thereupon,
after prescribing such notice, if any, as it may deem proper
and prescribe, appoint a Successor Property Trustee or
Successor Delaware Trustee, as the case may be.
SECTION 5.7. Vacancies among Trustees. If a
Trustee ceases to hold office for any reason and the number
of Trustees is not reduced pursuant to Section 5.1, or if
the number of Trustees is increased pursuant to Section 5.1,
a vacancy shall occur. A resolution certifying the
existence of such vacancy by a majority of the Regular
Trustees shall be conclusive evidence of the existence of
such vacancy. The vacancy shall be filled with a Trustee
appointed in accordance with Section 5.6.
SECTION 5.8. Effect of Vacancies. The death,
resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the
duties of a Trustee, or any one of them, shall not operate
to annul the Trust. Whenever a vacancy in the number of
Regular Trustees shall occur, until such vacancy is filled
by the appointment of a Regular Trustee in accordance with
Section 5.6, the Regular Trustees in office, regardless of
their number, shall have all the powers granted to the
Regular Trustees and shall discharge all the duties imposed
upon the Regular Trustees by this Declaration.
SECTION 5.9. Meetings. Meetings of the Regular
Trustees shall be held from time to time upon the call of
any Regular Trustee. Regular meetings of the Regular
Trustees may be held at a time and place fixed by resolution
of the Regular Trustees. Notice of any in-person meetings
of the Regular Trustees shall be hand delivered or otherwise
delivered in writing (including by facsimile, with a hard
copy by overnight courier) not less than 48 hours before
such meeting. Notice of any telephonic meetings of the
Regular Trustees or any committee thereof shall be hand
delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less
than 24 hours before a meeting. Notices shall contain a
brief statement of the time, place and anticipated purposes
of the meeting. The presence (whether in person or by
telephone) of a Regular Trustee at a meeting shall
constitute a waiver of notice of such meeting except where a
Regular Trustee attends a meeting for the express purpose of
objecting to the transaction of any activity on the ground
that the meeting has not been lawfully called or convened.
Unless provided otherwise in this Declaration, any action of
the Regular Trustees may be taken at a meeting by vote of a
majority of the Regular Trustees present (whether in person
or by telephone) and eligible to vote with respect to such
matter, provided that a Quorum is present, or without a
meeting by the unanimous written consent of the Regular
Trustees. In the event there is only one Regular Trustee,
any action of such Regular Trustee shall be evidenced by a
written consent of such Regular Trustee.
SECTION 5.10. Delegation of Power. (a) Any
Regular Trustee 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 3.6, including any
registration statement or amendment thereto filed with the
Commission or making any other governmental filing.
(b) The Regular Trustees shall have power to
delegate from time to time to such of their number or to
officers of the Trust the doing of such things and the
execution of such instruments either in the name of the
Trust or the names of the Regular Trustees or otherwise as
the Regular Trustees may deem expedient, to the extent such
delegation is not prohibited by applicable law or contrary
to the provisions of the Trust, as set forth herein.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1. Distributions. Holders shall
receive Distributions in accordance with the applicable
terms of the relevant Holder's Securities. Distributions
shall be made on the Preferred Securities and the Common
Securities in accordance with the preferences set forth in
their respective terms. If and to the extent that the
Debenture Issuer makes a payment of interest (including
Compounded Interest (as defined in the Indenture) and
Additional Interest (as defined in the Indenture)), premium
and principal on the Subordinated Debentures held by the
Property Trustee (the amount of any such payment being a
"Payment Amount"), the Property Trustee shall and is
directed, to the extent funds are available for that
purpose, to make a Distribution of the Payment Amount to the
Holders.
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1. General Provisions Regarding
Securities. (a) The Regular Trustees shall, on behalf of
the Trust, issue one class of preferred securities
representing undivided beneficial interests in the assets of
the Trust having such terms as are set forth in Exhibit A
and incorporated herein by reference (the "Preferred
Securities"), and one class of common securities represent
ing undivided beneficial interests in the assets of the
Trust having such terms as are set forth in Exhibit A and
incorporated herein by reference (the "Common Securities").
The Trust shall have no securities or other interests in the
assets of the Trust other than the Preferred Securities and
the Common Securities.
(b) The Securities shall be signed on behalf of
the Trust by the Regular Trustees (or, if there are more
than two Regular Trustees, by any two of the Regular
Trustees). Such signatures may be the manual or facsimile
signatures of the present or any future Regular Trustee.
Typographical and other minor errors or defects in any such
reproduction of any such signature shall not affect the
validity of any Security. In case any Regular Trustee of
the Trust who shall have signed any of the Securities shall
cease to be such Regular Trustee before the Security so
signed shall be delivered by the Trust, such Security
nevertheless may be delivered as though the person who
signed such Security had not ceased to be such Regular
Trustee; and any Security may be signed on behalf of the
Trust by such persons as, at the actual date of the
execution of such Security, are the Regular Trustees of the
Trust, although at the date of the execution and delivery of
the Declaration any such person was not such a Regular
Trustee.
(c) The consideration received by the Trust for
the issuance of the Securities shall constitute a
contribution to the capital of the Trust and shall not
constitute a loan to the Trust.
(d) Upon issuance of the Securities as provided
in this Declaration, the Securities so issued shall be
deemed to be validly issued, fully paid and non-assessable,
subject to Section 10.1(b) with respect to the Common
Securities.
(e) Every Person, by virtue of having become a
Holder or a Preferred Security Beneficial Owner in
accordance with the terms of this Declaration, shall be
deemed to have expressly assented and agreed to the terms
of, and shall be bound by, this Declaration.
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1. Termination of Trust. (a) The
Trust shall terminate:
(i) upon the bankruptcy of the Holder of the
Common Securities or the Sponsor;
(ii) upon the filing of a certificate of
dissolution or its equivalent with respect to the
Holder of the Common Securities or the Sponsor, the
filing of a certificate of cancellation with respect to
the Trust or the revocation of the charter of the
Holder of the Common Securities or of the Sponsor and
the expiration of ninety (90) days after the date of
revocation without a reinstatement thereof;
(iii) upon the entry of a decree of judicial
dissolution of the Holder of the Common Securities, the
Sponsor or the Trust;
(iv) when all of the Securities shall have been
called for redemption and the amounts necessary for
redemption thereof shall have been paid to the Holders
in accordance with the terms of the Securities;
(v) upon the dissolution of the Trust in
accordance with the terms of the Securities and
pursuant to which all of the Subordinated Debentures
shall have been distributed to the Holders of
Securities in exchange for all of the Securities; or
(vi) upon delivery of written direction to the
Property Trustee by the Sponsor at any time (which
direction is wholly optional and within the discretion
of the Sponsor) to dissolve the Trust and distribute
the Subordinated Debentures to the Holders of the
Securities in accordance with Section 3 of Exhibit A
hereto.
(b) As soon as is practicable after the occur
rence of an event referred to in Section 8.1(a), the
Trustees shall file a certificate of cancellation with the
Secretary of State of the State of Delaware.
(c) The provisions of Article X shall survive the
termination of the Trust.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1. Transfer of Securities. (a)
Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this
Declaration and in the terms of the Securities. Any
transfer or purported transfer of any Security not made in
accordance with this Declaration shall be null and void.
(b) Subject to this Article IX, Preferred Se
curities shall be freely transferable.
(c) Subject to this Article IX, the Sponsor and
any Related Party may only transfer Common Securities to the
Sponsor or a Related Party of the Sponsor, provided that any
such transfer is subject to the condition precedent that the
transferor obtain the written opinion of nationally
recognized independent counsel experienced in such matters
that such transfer would not cause more than an
insubstantial risk that:
(i) the Trust would not be classified for United
States federal income tax purposes as a grantor trust
and each Holder of Securities would not be treated as
owning an undivided beneficial interest in the
Subordinated Debentures; and
(ii) the Trust would be an Investment Company or
the transferee would be an Investment Company if the
transferee was not an Investment Company before the
transfer.
SECTION 9.2. Transfer of Certificates. The
Regular Trustees shall provide for the registration of
Certificates and of transfers of Certificates, which will be
effected without charge but only upon payment (with such
indemnity as the Regular Trustees may require) in respect of
any tax or other government charges which may be imposed in
relation to it. Upon surrender for registration of transfer
of any Certificate, the Regular Trustees shall cause one or
more new Certificates to be issued in the name of the
designated transferee or transferees. Every Certificate
surrendered for registration of transfer shall be
accompanied by a written instrument of transfer in form
satisfactory to the Regular Trustees duly executed by the
Holder or such Holder's attorney duly authorized in writing.
Each Certificate surrendered for registration of transfer
shall be canceled by the Regular Trustees. A transferee of
a Certificate shall be entitled to the rights and subject to
the obligations of a Holder hereunder upon the receipt by
such transferee of a Certificate. By acceptance of a
Certificate, each transferee shall be deemed to have agreed
to be bound by this Declaration and the documents
incorporated by reference herein.
SECTION 9.3. Deemed Security Holders. The
Trustees may treat the Person in whose name any Certificate
shall be registered on the books and records of the Trust as
the sole holder of such Certificate and of the Securities
represented by such Certificate for purposes of receiving
Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable
or other claim to or interest in such Certificate or in the
Securities represented by such Certificate on the part of
any Person, whether or not the Trustees shall have actual or
other notice thereof.
SECTION 9.4. Book Entry Interests. Unless
otherwise specified in the terms of the Preferred
Securities, the Preferred Securities Certificates, on
original issuance, will be issued in the form of one or
more, fully registered, global Preferred Security
Certificates (each a "Global Certificate"), to be delivered
to DTC, the initial Clearing Agency, by, or on behalf of,
the Trust. Such Global Certificates shall initially be
registered on the books and records of the Trust in the name
of Cede & Co., the nominee of DTC, and no Preferred Security
Beneficial Owner will receive a definitive Preferred
Security Certificate representing such Preferred Security
Beneficial Owner's interests in such Global Certificates,
except as provided in Section 9.7. Unless and until
definitive, fully registered Preferred Security Certificates
(the "Definitive Preferred Security Certificates") have been
issued to the Preferred Security Beneficial Owners pursuant
to Section 9.7:
(a) the provisions of this Section 9.4 shall be
in full force and effect;
(b) the Trust and the Trustees shall be entitled
to deal with the Clearing Agency for all purposes of
this Declaration (including the payment of
Distributions on the Global Certificates and receiving
approvals, votes or consents hereunder) as the Holder
of the Preferred Securities and the sole holder of the
Global Certificates and shall have no obligation to the
Preferred Security Beneficial Owners;
(c) to the extent that the provisions of this
Section 9.4 conflict with any other provisions of this
Declaration, the provisions of this Section 9.4 shall
control; and
(d) the rights of the Preferred Security Bene
ficial Owners shall be exercised only through the
Clearing Agency and shall be limited to those
established by law and agreements between such
Preferred Security Beneficial Owners and the Clearing
Agency and/or the Clearing Agency Participants. DTC
will make book entry transfers among the Clearing
Agency Participants and receive and transmit payments
of Distributions on the Global Certificates to such
Clearing Agency Participants.
SECTION 9.5. Notices to Clearing Agency.
Whenever a notice or other communication to the Preferred
Security Holders is required under this Declaration, unless
and until Definitive Preferred Security Certificates shall
have been issued to the Preferred Security Beneficial Owners
pursuant to Section 9.7, the Regular Trustees shall give all
such notices and communications specified herein to be given
to the Preferred Security Holders to the Clearing Agency,
and shall have no notice obligations to the Preferred
Security Beneficial Owners.
SECTION 9.6. Appointment of Successor Clearing
Agency. If any Clearing Agency elects to discontinue its
services as securities depositary with respect to the
Preferred Securities, the Regular Trustees may, in their
sole discretion, appoint a successor Clearing Agency with
respect to such Preferred Securities.
SECTION 9.7. Definitive Preferred Security
Certificates. If:
(a) a Clearing Agency elects to discontinue its
services as securities depositary with respect to the
Preferred Securities and a successor Clearing Agency is
not appointed within ninety (90) days after such discon
tinuance pursuant to Section 9.6; or
(b) the Regular Trustees elect, after
consultation with the Sponsor, to terminate the book
entry system through the Clearing Agency with respect
to the Preferred Securities,
then:
(c) Definitive Preferred Security Certificates
shall be prepared by the Regular Trustees on behalf of
the Trust with respect to such Preferred Securities;
and
(d) upon surrender of the Global Certificates by
the Clearing Agency, accompanied by registration in
structions, the Regular Trustees shall cause Definitive
Preferred Security Certificates to be delivered to
Preferred Security Beneficial Owners in accordance with
the instructions of the Clearing Agency. Neither the
Trustees nor the Trust shall be liable for any delay in
delivery of such instructions and each of them may
conclusively rely on, and shall be protected in relying
on, such instructions. The Definitive Preferred
Security Certificates shall be printed, lithographed or
engraved or may be produced in any other manner as is
reasonably acceptable to the Regular Trustees, as
evidenced by their execution thereof, and may have such
letters, numbers or other marks of identification or
designation and such legends or endorsements as the
Regular Trustees may deem appropriate, or as may be
required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which Preferred
Securities may be listed, or to conform to usage.
SECTION 9.8. Mutilated, Destroyed, Lost or Stolen
Certificates. If:
(a) any mutilated Certificates should be sur
rendered to the Regular Trustees, or if the Regular
Trustees shall receive evidence to their satisfaction
of the destruction, loss or theft of any Certificate;
and
(b) there shall be delivered to the Regular
Trustees such security or indemnity as may be required
by them to keep each of them harmless,
then in the absence of notice that such Certificate shall
have been acquired by a bona fide purchaser, any two Regular
Trustees on behalf of the Trust shall execute and deliver,
in exchange for or in lieu of any such mutilated, destroyed,
lost or stolen Certificate, a new Certificate of like
denomination. In connection with the issuance of any new
Certificate under this Section 9.8, the Regular Trustees may
require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection
therewith. Any duplicate Certificate issued pursuant to
this Section shall constitute conclusive evidence of an
ownership interest in the relevant Securities, as if
originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1. Liability. (a) Except as
expressly set forth in this Declaration, the Subordinated
Debentures, the Preferred Securities Guarantee and the terms
of the Securities, the Sponsor shall not be:
(i) personally liable for the return of any
portion of the capital contributions (or any return
thereon) of the Holders of the Securities which shall
be made solely from assets of the Trust; and
(ii) be required to pay to the Trust or to any
Holder of Securities any deficit upon dissolution of
the Trust or otherwise.
(b) The Sponsor shall be liable for all of the
debts and obligations of the Trust (other than with respect
to the Securities) to the extent not satisfied out of the
Trust's assets.
SECTION 10.2. Exculpation. (a) No Indemnified
Person shall be liable, responsible or accountable in
damages or otherwise to the Trust or any Covered Person for
any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Indemnified Person in
good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the
scope of the authority conferred on such Indemnified Person
by this Declaration or by law, except that an Indemnified
Person shall be liable for any such loss, damage or claim in
curred by reason of such Indemnified Person's gross
negligence (or, in the case of the Property Trustee,
pursuant to Section 3.9, negligence) or willful misconduct
with respect to such acts or omissions.
(b) An Indemnified Person shall be fully pro
tected in relying in good faith upon the records of the
Trust and upon such information, opinions, reports or
statements presented to the Trust by any Person as to
matters the Indemnified Person reasonably believes are
within such other Person's professional or expert competence
and who has been selected with reasonable care by or on
behalf of the Trust, including information, opinions,
reports or statements as to the value and amount of the
assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which
Distributions to Holders of Securities might properly be
paid.
SECTION 10.3. Fiduciary Duty. (a) To the extent
that, at law or in equity, an Indemnified Person has duties
(including fiduciary duties) and liabilities relating
thereto to the Trust or to any other Covered Person, an
Indemnified Person acting under this Declaration shall not
be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this
Declaration. The provisions of this Declaration, to the
extent that they restrict the duties and liabilities of an
Indemnified Person otherwise existing at law or in equity
(other than duties imposed on the Property Trustee under the
Trust Indenture Act), are agreed by the parties hereto to
replace such other duties and liabilities of such
Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or
arises between an Indemnified Person and Covered
Persons; or
(ii) whenever this Declaration or any other
agreement contemplated herein or therein provides that
an Indemnified Person shall act in a manner that is, or
provides terms that are, fair and reasonable to the
Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of
interest, take such action or provide such terms, consid
ering in each case the relative interest of each party
(including its own interest) to such conflict, agreement,
transaction or situation and the benefits and burdens
relating to such interests, any customary or accepted
industry practices, and any applicable generally accepted
accounting practices or principles. In the absence of bad
faith by the Indemnified Person, the resolution, action or
terms so made, taken or provided by the Indemnified Person
shall not constitute a breach of this Declaration or any
other agreement contemplated herein or of any duty or
obligation of the Indemnified Person at law or in equity or
otherwise.
(c) Whenever in this Declaration an Indemnified
Person is permitted or required to make a decision:
(i) in its "discretion" or under a grant of
similar authority, the Indemnified Person shall be enti
tled to consider such interests and factors as it
desires, including its own interests, and shall have no
duty or obligation to give any consideration to any
interest of, or factors affecting, the Trust or any
other Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under such
express standard and shall not be subject to any other
or different standard imposed by this Declaration or by
applicable law.
SECTION 10.4. Indemnification. (a) To the
fullest extent permitted by applicable law, the Sponsor
shall indemnify and hold harmless each Indemnified Person
from and against any loss, damage, liability, tax, penalty,
expense or claim incurred by such Indemnified Person by
reason of the creation, operation or termination of the
Trust or any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and
in a manner such Indemnified Person reasonably believed to
be within the scope of authority conferred on such Indemni
fied Person by this Declaration, except that no Indemnified
Person shall be entitled to be indemnified in respect of any
loss, damage or claim incurred by such Indemnified Person by
reason of gross negligence (or, in the case of the Property
Trustee, pursuant to Section 3.9, negligence) or willful
misconduct with respect to such acts or omissions.
(b) To the fullest extent permitted by applicable
law, expenses (including legal fees) incurred by an
Indemnified Person in defending any claim, demand, action,
suit or proceeding shall, from time to time, be advanced by
the Sponsor prior to the final disposition of such claim,
demand, action, suit or proceeding upon receipt by the
Sponsor of an undertaking by or on behalf of the Indemnified
Person to repay such amount if it shall be determined that
the Indemnified Person is not entitled to be indemnified as
authorized in Section 10.4(a). The rights to
indemnification set forth herein shall survive the
termination of this Declaration.
SECTION 10.5. Outside Businesses. Any Covered
Person, the Sponsor, the Delaware Trustee and the Property
Trustee may engage in or possess an interest in other
business ventures of any nature or description,
independently or with others, similar or dissimilar to the
business of the Trust, and the Trust and the Holders of
Securities shall have no rights by virtue of this
Declaration in and to such independent ventures or the
income or profits derived therefrom and the pursuit of any
such venture, even if competitive with the business of the
Trust, shall not be deemed wrongful or improper. No Covered
Person, the Sponsor, the Delaware Trustee or the Property
Trustee shall be obligated to present any particular
investment or other opportunity to the Trust even if such
opportunity is of a character that, if presented to the
Trust, could be taken by the Trust, and any Covered Person,
the Sponsor, the Delaware Trustee and the Property Trustee
shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend
to others any such particular investment or other
opportunity. Any Covered Person, the Delaware Trustee and
the Property Trustee may engage or be interested in any
financial or other transaction with the Sponsor or any
Affiliate of the Sponsor, or may act as depository for,
trustee or agent for, or act on any committee or body of
holders of, securities or other obligations of the Sponsor
or its Affiliates.
ARTICLE XI
ACCOUNTING
SECTION 11.1. Fiscal Year. The fiscal year
("Fiscal Year") of the Trust shall be the calendar year, or
such other year as is required by the Code.
SECTION 11.2. Certain Accounting Matters. (a)
At all times during the existence of the Trust, the Regular
Trustees shall keep, or cause to be kept, full books of
account, records and supporting documents, which shall
reflect in reasonable detail, each transaction of the Trust.
The books of account shall be maintained on the accrual
method of accounting, in accordance with generally accepted
accounting principles consistently applied. The Trust shall
use the accrual method of accounting for United States
federal income tax purposes. The books of account and the
records of the Trust shall be examined by and reported upon
as of the end of each Fiscal Year of the Trust by a firm of
independent certified public accountants selected by the
Regular Trustees.
(b) The Regular Trustees shall cause to be
prepared and delivered to each of the Holders of Securities,
within 90 days after the end of each Fiscal Year of the
Trust, annual financial statements of the Trust, including a
balance sheet of the Trust as of the end of such Fiscal
Year, and the related statements of income or loss.
(c) The Regular Trustees shall cause to be duly
prepared and delivered to each of the Holders of Securities,
an annual United States federal income tax information
statement, if one is required by the Code, containing such
information with regard to the Securities held by each
Holder as is required by the Code and the Treasury Regu
lations. Notwithstanding any right under the Code to
deliver any such statement at a later date, the Regular
Trustees shall endeavor to deliver all such statements
within thirty (30) days after the end of each Fiscal Year of
the Trust.
(d) The Regular Trustees shall cause to be duly
prepared and filed with the appropriate taxing authority, an
annual United States federal income tax return, on a Form
1041 or such other form required by United States federal
income tax law, and any other annual income tax returns re
quired to be filed by the Regular Trustees on behalf of the
Trust with any state or local taxing authority.
SECTION 11.3. Banking. The Trust shall maintain
one or more bank accounts in the name and for the sole
benefit of the Trust; provided, however, that all payments
of funds in respect of the Subordinated Debentures held by
the Property Trustee shall be made directly to the Property
Trustee Account and no other funds of the Trust shall be
deposited in the Property Trustee Account. The sole
signatories for such accounts shall be designated by the
Regular Trustees; provided, however, that the Property
Trustee shall designate the signatories for the Property
Trustee Account.
SECTION 11.4. Withholding. The Trust and the
Trustees shall comply with all withholding requirements
under United States federal, state and local law. The Trust
shall request, and the Holders shall provide to the Trust,
such forms or certificates as are necessary to establish an
exemption from withholding with respect to each Holder, and
any representations and forms as shall reasonably be
requested by the Trust to assist it in determining the
extent of, and in fulfilling, its withholding obligations.
The Regular Trustee(s) shall file required forms with
applicable jurisdictions and, unless an exemption from
withholding is properly established by a Holder, shall remit
amounts withheld with respect to the Holder to applicable
jurisdictions. To the extent that the Trust is required to
withhold and pay over any amounts to any authority with
respect to distributions or allocations to any Holder, the
amount withheld shall be deemed to be a distribution in the
amount of the withholding to the Holder. In the event of
any claimed over-withholding, Holders shall be limited to an
action against the applicable jurisdiction. If the amount
withheld was not withheld from actual Distributions made,
the Trust may reduce subsequent Distributions by the amount
of such withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1. Amendments. (a) Except as
otherwise provided in this Declaration or by any applicable
terms of the Securities, this Declaration may be amended by,
and only by, a written instrument approved and executed by
the Regular Trustees (or, if there are more than two Regular
Trustees, a majority of the Regular Trustees); provided,
however, that:
(i) no amendment shall be made, and any such
purported amendment shall be void and ineffective:
(1) unless, in the case of
any proposed amendment, the Property
Trustee shall have first received an
Officers' Certificate from each of the
Trust and the Sponsor that such
amendment is permitted by, and conforms
to, the terms of this Declaration
(including the terms of the Securities);
(2) unless, in the case of
any proposed amendment which affects the
rights, powers, duties, obligations or
immunities of the Property Trustee, the
Property Trustee shall have first
received:
(A) an Officers' Certificate from each
of the Trust and the Sponsor that such amendment
is permitted by, and conforms to, the terms of
this Declaration (including the terms of the
Securities); and
(B) an opinion of counsel (who may be
counsel to the Sponsor or the Trust) that such
amendment is permitted by, and conforms to, the
terms of this Declaration (including the terms of
the Securities); and
(ii) no amendment shall be made, and any such
purported amendment shall be void and ineffective, to
the extent the result thereof would be to
(A) cause the Trust not to be characterized
for purposes of United States federal income
taxation as a grantor trust and each Holder of
Securities not to be treated as owning an
undivided beneficial interest in the Subordinated
Debentures, as evidenced by an Opinion of Counsel
to the effect that such amendment shall not result
in the foregoing;
(B) affect adversely the rights, powers,
duties, obligations or immunities of the Property
Trustee or the Delaware Trustee; or
(C) cause the Trust to be deemed to be an
Investment Company which is required to be regis
tered under the Investment Company Act;
(iii) at such time after the Trust has issued any
Securities which remain outstanding, any amendment
which would adversely affect the rights, privileges or
preferences of any Holder of Securities may be effected
only with such additional requirements as may be set
forth in the terms of such Securities;
(iv) Section 9.1(c) and this Section 12.1 shall not
be amended without the consent of all of the Holders of
the Securities;
(v) Article IV shall not be amended without the
consent of the Holders of a Majority in liquidation
amount of the Common Securities; and
(vi) the rights of the holders of the Common
Securities under Article V to increase or decrease the
number of, and appoint and remove, Trustees shall not
be amended without the consent of the Holders of a
Majority in liquidation amount of the Common
Securities.
(b) Notwithstanding Section 12.1(a)(iii), this
Declaration may be amended without the consent of the
Holders of the Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this
Declaration that may be defective or inconsistent with
any other provision of this Declaration;
(iii) to add to the covenants, restrictions or
obligations of the Sponsor; and
(iv) to conform to any change in Rule 3a-5 or
written change in interpretation or application of Rule
3a-5 by any legislative body, court, government agency
or regulatory authority which amendment does not have a
material adverse effect on the rights, preferences or
privileges of the Holders.
SECTION 12.2. Meetings of the Holders of
Securities; Action by Written Consent. (a) Meetings of the
Holders of any class of Securities may be called at any time
by the Regular Trustees (or as provided in the terms of the
Securities) to consider and act on any matter on which
Holders of such class of Securities are entitled to act
under the terms of this Declaration, the terms of the
Securities or the rules of any stock exchange on which the
Preferred Securities are listed or admitted for trading.
The Regular Trustees shall call a meeting of such class of
Holders, if directed to do so by the Holders of at least 10%
in liquidation amount of such class of Securities. Such
direction shall be given by delivering to the Regular
Trustees one or more calls in a writing stating that the
signing Holders of Securities wish to call a meeting and
indicating the general or specific purpose for which the
meeting is to be called. Any Holders of Securities calling
a meeting shall specify in writing the Security Certificates
held by the Holders of Securities exercising the right to
call a meeting and only those specified shall be counted for
purposes of determining whether the required percentage set
forth in the second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in
the terms of the Securities, the following provisions shall
apply to meetings of Holders of Securities:
(i) Notice of any such meeting shall be given to
all the Holders of Securities having a right to vote
thereat at least seven (7) days and not more than sixty
(60) days before the date of such meeting. Whenever a
vote, consent or approval of the Holders of Securities
is permitted or required under this Declaration or the
rules of any stock exchange on which the Preferred
Securities are listed or admitted for trading, such
vote, consent or approval may be given at a meeting of
the Holders of Securities. Any action that may be
taken at a meeting of the Holders of Securities may be
taken without a meeting if a consent in writing setting
forth the action so taken is signed by the Holders of
Securities owning not less than the minimum amount of
Securities in liquidation amount that would be neces
sary to authorize or take such action at a meeting at
which all Holders of Securities having a right to vote
thereon were present and voting. Prompt notice of the
taking of action without a meeting shall be given to
the Holders of Securities entitled to vote who have not
consented in writing. The Regular Trustees may specify
that any written ballots submitted to the Holders of
Securities for the purpose of taking any action without
a meeting shall be returned to the Trust within the
time specified by the Regular Trustees.
(ii) Each Holder of a Security may authorize any
Person to act for it by proxy on all matters in which
such Holder of Securities is entitled to participate,
including waiving notice of any meeting, or voting or
participating at a meeting. No proxy shall be valid
after the expiration of eleven (11) months from the
date thereof unless otherwise provided in the proxy.
Every proxy shall be revocable at the pleasure of the
Holder of Securities executing it. Except as otherwise
provided herein, all matters relating to the giving,
voting or validity of proxies shall be governed by the
General Corporation Law of the State of Delaware
relating to proxies, and judicial interpretations
thereunder, as if the Trust were a Delaware corporation
and the Holders of the Securities were stockholders of
a Delaware corporation.
(iii) Each meeting of the Holders of the Securities
shall be conducted by the Regular Trustees or by such
other Person that the Regular Trustees may designate.
(iv) Unless the Business Trust Act, this
Declaration, the Trust Indenture Act, the terms of the
Securities or the listing rules of any stock exchange
on which the Preferred Securities are then listed or
trading otherwise provides, the Regular Trustees, in
their sole discretion, shall establish all other
provisions relating to meetings of Holders of
Securities, including notice of the time, place or
purpose of any meeting at which any matter is to be
voted on by any Holders of Securities, waiver of any
such notice, action by consent without a meeting, the
establishment of a record date, quorum requirements,
voting in person or by proxy or any other matter with
respect to the exercise of any such right to vote.
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE
SECTION 13.1. Representations and Warranties of
Property Trustee. The Trustee which acts as initial
Property Trustee represents and warrants to the Trust and to
the Sponsor at the date of this Declaration, and each Succes
sor Property Trustee represents and warrants to the Trust
and the Sponsor at the time of the Successor Property
Trustee's acceptance of its appointment as Property Trustee
that:
(a) The Property Trustee is a national banking
association duly organized under the laws of the United
States of America, with trust power and authority to
execute and deliver, and to carry out and perform its
obligations under the terms of, this Declaration.
(b) The execution, delivery and performance by
the Property Trustee of this Declaration has been duly
authorized by all necessary corporate action on the
part of the Property Trustee. This Declaration has
been duly executed and delivered by the Property
Trustee, and it constitutes a legal, valid and binding
obligation of the Property Trustee, enforceable against
it in accordance with its terms, subject to applicable
bankruptcy, reorganization, moratorium, insolvency and
other similar laws affecting creditors' rights
generally and to general principles of equity and the
discretion of the court (regardless of whether the
enforcement of such remedies is considered in a
proceeding in equity or at law).
(c) The execution, delivery and performance of
this Declaration by the Property Trustee does not
conflict with or constitute a breach of the Articles of
Organization or By-Laws of the Property Trustee.
(d) No consent, approval or authorization of, or
registration with or notice to, any State or Federal
banking authority is required for the execution,
delivery or performance by the Property Trustee of this
Declaration.
SECTION 13.2. Representations and Warranties of
Delaware Trustee. The Delaware Trustee represents and
warrants to the Trust and the Sponsor at the date of this
Declaration, that the Delaware Trustee has been authorized
to perform its obligations under the Certificate of Trust
and this Declaration. This Declaration under Delaware law
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).
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1. Notices. All notices provided for
in this Declaration shall be in writing, duly signed by the
party giving such notice, and shall be delivered, telecopied
or mailed by registered or certified mail, as follows:
(a) if given to the Trust, in care of the Regular
Trustees at the Trust's mailing address set forth below
(or such other address as the Trust may give notice of
to the Holders of the Securities):
KCPL FINANCING __
c/o Kansas City Power & Light Company
1201 Walnut
Kansas City, Missouri 64106-2124
Attention: Treasurer
Facsimile: 816-556-2992
(b) if given to the Property Trustee, at the
mailing address set forth below (or such other address
as the Property Trustee may give notice of to the
Holders of the Securities):
The First National Bank of Chicago
One First National Plaza, Suite 0216
Chicago, Illinois 60670-0216
Attention: Corporate Trust Administration
Facsimile: 312-407-4656
(c) if given to the Delaware Trustee, at the
mailing address of the Property Trustee with a copy to the
address set forth below (or such other address as the
Delaware Trustee may give notice of to the Holders of the
Securities):
First Chicago Delaware Inc.
300 King Street
Wilmington, Delaware 19801
Facsimile: 815-356-0391
(d) if given to the Holder of the Common Secu
rities, at the mailing address of the Sponsor set forth
below (or such other address as the Holder of the
Common Securities may give notice of to the Trust):
Kansas City Power & Light Company
1201 Walnut
Kansas City, Missouri 64106-2124
Attention: Treasurer
Facsimile: 816-556-2992
(d) if given to any other Holder, at the address
set forth on the books and records of the Trust.
All such notices shall be deemed to have been
given when received in person, telecopied with receipt
confirmed, or mailed by first class mail, postage prepaid
except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address
of which no notice was given, such notice or other document
shall be deemed to have been delivered on the date of such
refusal or inability to deliver.
SECTION 14.2. Governing Law. This Declaration
and the rights of the parties hereunder shall be governed by
and interpreted in accordance with the laws of the State of
Delaware and all rights and remedies shall be governed by
such laws without regard to principles of conflict of laws.
SECTION 14.3. Intention of the Parties. It is
the intention of the parties hereto that the Trust not be
characterized for United States federal income tax purposes
as an association taxable as a corporation or a partnership
but rather, that the Trust be characterized as a grantor
trust or otherwise in a manner such that each Holder of
Securities be treated as owning an undivided beneficial
interest in the Subordinated Debentures. The provisions of
this Declaration shall be interpreted to further this
intention of the parties.
SECTION 14.4. Headings. Headings contained in
this Declaration are inserted for convenience of reference
only and do not affect the interpretation of this
Declaration or any provision hereof.
SECTION 14.5. Successors and Assigns. Whenever
in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall
be deemed to be included, and all covenants and agreements
in this Declaration by the Sponsor and the Trustees shall
bind and inure to the benefit of their respective successors
and assigns, whether so expressed.
SECTION 14.6. Partial Enforceability. If any
provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held
invalid, the remainder of this Declaration, or the
application of such provision to persons or circumstances
other than those to which it is held invalid, shall not be
affected thereby.
SECTION 14.7. Counterparts. This Declaration may
contain more than one counterpart of the signature page and
this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart
signature pages. All of such counterpart signature pages
shall be read as though one, and they shall have the same
force and effect as though all of the signers had signed a
single signature page.
IN WITNESS WHEREOF, the undersigned has caused
these presents to be executed as of the day and year first
above written.
__________________________
John J. DeStefano
as Trustee
_________________________
Andrea F. Bielsker
as Trustee
THE FIRST NATIONAL BANK OF CHICAGO
Not in its individual capacity but
solely as Property Trustee
By: _________________________
Name:
Title:
FIRST CHICAGO DELAWARE INC.
Not in its individual capacity
but solely as Delaware Trustee
By: _________________________
Name:
Title:
KANSAS CITY POWER & LIGHT COMPANY
as Sponsor
By: ______________________
Name:
Title:
EXHIBIT A
TERMS OF
____% TRUST ORIGINATED PREFERRED SECURITIES
____% TRUST ORIGINATED COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and
Restated Declaration of Trust of KCPL Financing ___ dated as
of ____________, 199_ (as amended from time to time, the
"Declaration"), the designation, rights, privileges,
restrictions, preferences and other terms and provisions of
the Preferred Securities and the Common Securities are set
out below (each capitalized term used but not defined herein
has the meaning set forth in the Declaration or, if not
defined in such Declaration, as defined in the Prospectus
referred to below):
1. Designation and Number.
(a) Preferred Securities. Preferred Securities
of the Trust with an aggregate liquidation amount with
respect to the assets of the Trust of ___________ million
dollars ($___________) and a liquidation amount with respect
to the assets of the Trust of $25 per Preferred Security,
are hereby designated for the purposes of identification
only as "____% Trust Originated Preferred Securities" (the
"Preferred Securities"). The Preferred Security
Certificates evidencing the Preferred Securities shall be
substantially in the form attached hereto as Annex I, with
such changes and additions thereto or deletions therefrom as
may be required by ordinary usage, custom or practice.
(b) Common Securities. Common Securities of the
Trust with an aggregate liquidation amount with respect to
the assets of the Trust of _______________________________
million dollars ($_________) and a liquidation amount with
respect to the assets of the Trust of $25 per Common
Security, are hereby designated for the purposes of
identification only as "____% Trust Originated Common
Securities" (the "Common Securities"). The Common Security
Certificates evidencing the Common Securities shall be
substantially in the form attached hereto as Annex II, with
such changes and additions thereto or deletions therefrom as
may be required by ordinary usage, custom or practice.
2. Distributions. (a) Distributions payable on
each Security will be fixed at a rate per annum of ____%
(the "Coupon Rate") of the stated liquidation amount of $25
per Security, such rate being the rate of interest payable
on the Subordinated Debentures to be held by the Property
Trustee. Distributions in arrears will bear interest
compounded quarterly at the Coupon Rate to the extent
permitted by applicable law. The term "Distributions," as
used herein, includes any such interest payable unless
otherwise stated. A Distribution is payable only to the
extent that payments are made in respect of the Subordinated
Debentures held by the Property Trustee. The amount of
Distributions payable for any period will be computed for
any full quarterly Distribution period on the basis of a 360-
day year of twelve 30-day months, and for any period shorter
than a full quarterly Distribution period, on the basis of
the actual number of days elapsed in such a 90-day quarter.
(b) Distributions on the Securities will be
cumulative, will accrue from ____________, 199_ and will be
payable quarterly in arrears, on March 31, June 30,
September 30, and December 31 of each year, commencing on
____________, 199_, except as otherwise described below.
The Debenture Issuer has the right under the Indenture to
defer payments of interest by extending the interest payment
period from time to time on the Subordinated Debentures for
a period not exceeding twenty consecutive quarters (each
such period, an "Extension Period") and, as a consequence of
such extension, Distributions will also be deferred.
Despite such deferral, quarterly Distributions will continue
to accrue with interest thereon (to the extent permitted by
applicable law) at the Coupon Rate, compounded quarterly
during any such Extension Period. Prior to the termination
of any such Extension Period, the Debenture Issuer may
further extend such Extension Period; provided that such
Extension Period, together with all such previous and
further extensions thereof, may not exceed twenty
consecutive quarters or extend beyond the maturity of the
Subordinated Debentures. Payments of accrued Distributions
will be payable to Holders as they appear on the books and
records of the Trust on the first record date after the end
of the Extension Period. Upon the termination of any Exten
sion Period and the payment of all amounts then due, the
Debenture Issuer may commence a new Extension Period,
subject to the above requirements.
(c) Distributions on the Securities will be
payable to the Holders thereof as they appear on the books
and records of the Trust on the relevant record dates.
While the Preferred Securities remain in book-entry only
form, the relevant record dates shall be one Business Day
prior to the relevant payment dates which payment dates
correspond to the interest payment dates on the Subordinated
Debentures. Subject to any applicable laws and regulations
and the provisions of the Declaration, each such payment in
respect of the Preferred Securities will be made as
described under the heading "Description of the Preferred
Securities -- Book-Entry Only Issuance -- The Depository
Trust Company" in the Prospectus dated __________, as
supplemented by the Prospectus Supplement dated
____________, 199_ (the "Prospectus") of the Trust included
in the Registration Statement on Form S-3 of the Sponsor and
the Trust. The relevant record dates for the Common
Securities, and if the Preferred Securities shall not
continue to remain in book-entry-only form, the relevant
record dates for the Preferred Securities, shall conform to
the rules of any securities exchange on which the securities
are listed and, if none, shall be selected by the Regular
Trustees, which dates shall be at least one Business Day but
less than 60 Business Days before the relevant payment dates
which payment dates correspond to the interest payment dates
on the Subordinated Debentures. Distributions payable on
any Securities that are not punctually paid on any
Distribution payment date, as a result of the Debenture
Issuer having failed to make a payment under the
Subordianted Debentures, will cease to be payable to the
Person in whose name such Securities are registered on the
relevant record date, and such defaulted Distribution will
instead be payable to the Person in whose name such
Securities are registered on the special record date or
other specified date determined in accordance with the
Indenture. If any date on which Distributions are payable
on the Securities is not a Business Day, then payment of the
Distribution payable on such date 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 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.
(d) In the event that there is any money or other
property held by or for the Trust that is not accounted for
hereunder, such property shall be distributed Pro Rata (as
defined herein) among the Holders of the Securities.
3. Liquidation Distribution Upon Dissolution. In
the event of any voluntary or involuntary dissolution,
winding-up or termination of the Trust, the Holders of the
Securities on the date of the dissolution, winding-up or
termination, as the case may be, will be entitled to receive
out of the assets of the Trust available for distribution to
Holders of Securities, after paying or making reasonable
provision to pay all claims and obligations of the Trust in
accordance with Section 3808(e) of the Business Trust Act,
an amount equal to the aggregate of the stated liquidation
amount of $25 per Security plus accrued and unpaid
Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"), unless, in connection
with such dissolution, winding-up or termination,
Subordinated Debentures in an aggregate principal amount
equal to the aggregate stated liquidation amount of such
Securities, with an interest rate equal to the Coupon Rate
of, and bearing accrued and unpaid interest in an amount
equal to the accrued and unpaid Distributions on, such
Securities, shall be distributed on a Pro Rata basis to the
Holders of the Securities in exchange for such Securities.
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 the amounts payable directly
by the Trust on the Securities shall be paid on a Pro Rata
basis.
4. Redemption. (a) Upon the repayment of the
Subordinated Debentures in whole or in part, whether at
maturity or upon acceleration, redemption or otherwise, the
proceeds from such repayment or payment shall be
simultaneously applied to redeem Securities having an
aggregate stated liquidation amount equal to the aggregate
principal amount of the Subordinated Debentures so repaid or
redeemed at a redemption price of $25 per Security plus an
amount equal to accrued and unpaid Distributions thereon at
the date of the redemption, payable in cash (the "Redemption
Price"). Holders will be given not less than 30 nor more
than 60 days notice of such redemption except in the case of
payments upon maturity.
(b) If fewer than all the outstanding Securities
are to be so redeemed, the Common Securities and the
Preferred Securities will be redeemed Pro Rata and the
Preferred Securities to be redeemed will be as described in
Section 4(f)(ii) below.
(c) If, at any time, a Tax Event (as defined
below) shall occur and be continuing, the Regular Trustees,
upon not less than 30 nor more than 60 days notice, may
redeem the Securities in whole or in part for cash within 90
days following the occurrence of such Tax Event (the "90 Day
Period") at the Redemption Price on a Pro Rata basis
provided, that, if at the time there is available to the
Trust 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
that has no adverse effect on the Sponsor, the Trust, the
Debenture Issuer or the Holders of the Securities, the Trust
will pursue such Ministerial Action in lieu of redemption.
"Tax Event" means that the Regular Trustees shall
have received an opinion from independent tax counsel
experienced in such matters (a "Redemption Tax Opinion") to
the effect that, on or after the latest date of the
Prospectus, 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 therefor or
therein, or (b) any amendment to, or change in, an
interpretation or application of any such laws or
regulations by any legislative body, court, governmental
agency or regulatory authority, which amendment or change is
enacted, promulgated, issued or announced or which
interpretation or pronouncement is issued or announced or
which action is taken, in each case on or after the date of
the Prospectus, there is more than an insubstantial risk
that interest payable by the Debenture Issuer to the Trust
on the Subordinated Debentures is not, or within 90 days of
the date thereof will not be, deductible, in whole or in
part, by the Debenture Issuer for United States federal
income tax purposes.
(d) The Trust may not redeem fewer than all the
outstanding Securities unless all accrued and unpaid
Distributions have been paid on all Securities for all
quarterly Distribution periods terminating on or before the
date of redemption.
5. Distribution of Subordinated Debentures in
Exchange for Securities. (a) On and from the date fixed by
the Trustees for any distribution of Subordinated Debentures
upon dissolution of the Trust: (i) the Securities will no
longer be deemed to be outstanding, (ii) The Depository
Trust Company (the "Depositary") or its nominee (or any
successor Clearing Agency or its nominee), as the record
Holder of the Preferred Securities, will receive a
registered global certificate or certificates representing
the Subordinated Debentures to be delivered upon such
distribution and any certificates representing Securities,
except for certificates representing Preferred Securities
held by the Depository or its nominee (or any successor
Clearing Agency or its nominee), will be deemed to represent
beneficial interests in the Subordinated Debentures having
an aggregate principal amount equal to the aggregate stated
liquidation amount of, with an interest rate identical to
the Coupon Rate of, and accrued and unpaid interest equal to
accrued and unpaid Distributions on, such Securities until
such certificates are presented to the Debenture Issuer or
its agent for transfer or reissue.
(b) If the Subordinated Debentures are
distributed to holders of the Securities, pursuant to the
terms of the Indenture, the Debenture Issuer will use its
best efforts to have the Subordinated Debentures listed on
the New York Stock Exchange or on such other exchange as the
Preferred Securities were listed immediately prior to the
distribution of the Subordianted Debentures.
6. Redemption or Distribution Procedures. (a)
Notice of any redemption of, or notice of distribution of
Subordinated Debentures in exchange for, the Securities (a
"Redemption/Distribution Notice") will be given by the Trust
by mail to each Holder of Securities to be redeemed or ex
changed not fewer than 30 nor more than 60 days before the
date fixed for redemption or exchange thereof which, in the
case of a redemption, will be the date fixed for redemption
of the Subordinated Debentures. For purposes of the calcu
lation of the date of redemption or exchange and the dates
on which notices are given pursuant to this Section 6(a), a
Redemption/Distribution Notice shall be deemed to be given
on the day such notice is first mailed by first-class mail,
postage prepaid, to Holders of Securities. Each
Redemption/Distribution Notice shall be addressed to the
Holders of Securities at the address of each such Holder
appearing in the books and records of the Trust. No defect
in the Redemption/Distribution Notice or in the mailing of
either thereof with respect to any Holder shall affect the
validity of the redemption or exchange proceedings with
respect to any other Holder.
(b) In the event that fewer than all the
outstanding Securities are to be redeemed, the Securities to
be redeemed shall be redeemed Pro Rata from each Holder of
Preferred Securities; provided that if, as a result of such
Pro Rata redemption, Clearing Agency Participants would hold
fractional interests in the Preferred Securities, the
Depositary will adjust the amount of the interest of each
Clearing Agency Participant to be redeemed to avoid such
fractional interests.
(c) If Securities are to be redeemed and the
Trust gives a Redemption/Distribution Notice, which notice
may only be issued if the Subordinated Debentures are
redeemed as set out in this Section 4 (which notice will be
irrevocable), then (i) while the Preferred Securities are in
book entry only form, with respect to the Preferred Securi
ties, by 12:00 noon, New York City time, on the redemption
date, provided that the Debenture Issuer has paid the
Property Trustee a sufficient amount of cash in connection
with the related redemption or maturity of the Subordinated
Debentures, the Property Trustee will deposit irrevocably
with the Depositary or its nominee (or successor Clearing
Agency or its nominee) funds sufficient to pay the
applicable Redemption Price with respect to the Preferred
Securities and will give the Depositary irrevocable
instructions and authority to pay the Redemption Price to
the Holders of the Preferred Securities, and (ii) if the
Preferred Securities are issued in definitive form, with
respect to the Preferred Securities, and with respect to the
Common Securities, provided that the Debenture Issuer has
paid the Property Trustee a sufficient amount of cash in
connection with the related redemption or maturity of the
Subordinated Debentures, the Property Trustee will pay the
relevant Redemption Price to the Holders of such Securities
by check mailed to the address of the relevant Holder
appearing on the books and records of the Trust on the
redemption date. If a Redemption/Distribution Notice shall
have been given and funds have been deposited as required,
if applicable, then immediately prior to the close of
business on the date of such deposit, or on the redemption
date, as applicable, all rights of Holders of such
Securities so called for redemption will cease, except the
right of the Holders of such Securities to receive the
Redemption Price, but without interest on such Redemption
Price. Neither the Regular Trustees nor the Trust shall be
required to register or cause to be registered the transfer
of any Securities which have been so called for redemption.
If any date fixed for redemption of Securities is not a
Business Day, then payment of the 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 fixed for
redemption. If payment of the Redemption Price in respect
of Securities is improperly withheld or refused and not paid
either by the Property Trustee or by the Sponsor as
Guarantor pursuant to the Preferred Securities Guarantee,
Distributions on such Securities will continue to accrue,
from the original redemption date to the actual date of
payment, in which case the actual payment date will be
considered the date fixed for redemption for purposes of
calculating the Redemption Price.
(d) Redemption/Distribution Notices shall be sent
to (i) in respect of the Preferred Securities, the
Depositary or its nominee (or any successor Clearing Agency
or its nominee) if Global Certificates have been issued or
if Definitive Preferred Security Certificates have been
issued, to the Holders thereof, and (ii) in respect of the
Common Securities, to the Holders thereof.
(e) Subject to applicable law (including, without
limitation, United States federal securities laws), the
Sponsor or any of its Affiliates may at any time and from
time to time purchase outstanding Preferred Securities by
tender, in the open market or by private agreement.
7. Voting Rights - Preferred Securities. (a)
Except as provided under Sections 7(b) and 9 and as
otherwise required by law and the Declaration, the Holders
of the Preferred Securities will have no voting rights.
(b) The Holders of a Majority in liquidation
amount of the Preferred Securities, voting separately as a
class, 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 upon the
Property Trustee under the Declaration, including (i)
directing the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trust
ee, or executing any trust or power conferred on the
Debenture Trustee with respect to the Subordinated
Debentures, (ii) waive any past default and its consequences
that are waivable under 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 termi
nation of the Indenture or the Subordinated Debentures,
where such consent shall be required, provided, however,
that where a consent under the Indenture would require the
consent of greater than a majority of the Holders in
principal amount of Subordinated Debentures affected thereby
(a "Super Majority"), the Property Trustee may only give
such consent at the direction of the Holders of at least the
proportion in liquidation amount of the Preferred Securities
which the relevant Super Majority represents of the
aggregate principal amount of the Subordinated Debentures.
The Property Trustee shall not take any action in accordance
with the directions of the Holders of the Preferred
Securities under this paragraph unless the Property Trustee
has obtained an opinion of independent tax counsel to the
effect that, for the purposes of United States federal
income tax, the Trust will not be classified as other than a
grantor trust on account of such action and that each Holder
of Securities will continue to be treated as owning an
undivided beneficial interest in the Subordinated Debentures
on account of such action. If the Property Trustee fails to
enforce its rights under the Declaration, any Holder of
Preferred Securities may institute a legal proceeding
directly against any Person to enforce the Property
Trustee's rights under the Declaration, without first
instituting a legal proceeding against the Property Trustee
or any other Person.
Any approval or direction of Holders of Preferred
Securities may be given at a separate meeting of Holders of
Preferred Securities convened for such purpose, at a meeting
of all of the Holders of Securities in the Trust or pursuant
to written consent. The Regular Trustees will cause a
notice of any meeting at which Holders of Preferred
Securities are entitled to vote, or of any matter upon which
action by written consent of such Holders is to be taken, to
be mailed to each Holder of record of Preferred Securities.
Each such notice will include a statement setting forth (i)
the date of such meeting or the date by which such action is
to be taken, (ii) a description of any resolution proposed
for adoption at such meeting on which such Holders are
entitled to vote or of such matter upon which written
consent is sought and (iii) instructions for the delivery of
proxies or consents.
No vote or consent of the Holders of the Preferred
Securities will be required for the Trust to redeem and
cancel Preferred Securities or to distribute the
Subordinated Debentures in accordance with the Declaration
and the terms of the Securities.
Notwithstanding that Holders of Preferred
Securities are entitled to vote or consent under any of the
circumstances described above, any of the Preferred
Securities that are owned by the Sponsor, or by any entity
directly or indirectly controlling or controlled by or under
direct or indirect common control with the Sponsor, shall
not be entitled to vote or consent and shall, for purposes
of such vote or consent, be treated as if they were not
outstanding.
8. Voting Rights - Common Securities. (a)
Except as provided under Section 8(b) and (c) and as
otherwise required by law and the Declaration, the Holders
of the Common Securities will have no voting rights.
(b) The Holders of the Common Securities are
entitled, in accordance with Article V of the Declaration,
to vote to appoint, remove or replace any Trustee or to
increase or decrease the number of Trustees.
(c) Only after the Event of Default with respect
to the Preferred Securities has been cured, waived or
otherwise eliminated, the Holders of a Majority in
liquidation amount of the Common Securities, voting
separately as a class, 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
upon the Property Trustee under the Declaration, including
(i) directing the time, method and place of conducting any
proceeding for any remedy available to the Debenture
Trustee, or executing any trust or power conferred on the
Debenture Trustee with respect to the Subordinated
Debentures, (ii) waive any past default and its consequences
that is waivable under Section 6.06 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, provided, however, that where a consent under the
Indenture would require the consent of a Super Majority, the
Property Trustee may only give such consent at the direction
of the Holders of at least the proportion in liquidation
amount of the Common Securities which the relevant Super
Majority represents of the aggregate principal amount of the
Subordinated Debentures. The Property Trustee shall not
take any action in accordance with the directions of the
Holders of the Common Securities under this paragraph unless
the Property Trustee has obtained an opinion of independent
tax counsel to the effect that, for the purposes of United
States federal income tax, the Trust will not be classified
as other than a grantor trust on account of such action and
that each Holder of Securities will continue to be treated
as owning an undivided beneficial interest in the
Subordinated Debentures on account of such action. If the
Property Trustee fails to enforce its rights under the
Declaration, any Holder of Common Securities may institute a
legal proceeding directly against any Person to enforce the
Property Trustee's rights under the Declaration, without
first instituting a legal proceeding against the Property
Trustee or any other Person.
Any approval or direction of Holders of Common
Securities may be given at a separate meeting of Holders of
Common Securities convened for such purpose, at a meeting of
all of the Holders of Securities in the Trust or pursuant to
written consent. The Regular Trustees will cause a notice
of any meeting at which Holders of Common Securities are
entitled to vote, or of any matter upon which action by
written consent of such Holders is to be taken, to be mailed
to each Holder of record of Common Securities. Each such
notice will include a statement setting forth (i) the date
of such meeting or the date by which such action is to be
taken, (ii) a description of any resolution proposed for
adoption at such meeting on which such Holders are entitled
to vote or of such matter upon which written consent is
sought and (iii) instructions for the delivery of proxies or
consents.
No vote or consent of the Holders of the Common
Securities will be required for the Trust to redeem and
cancel Common Securities or to distribute the Subordinated
Debentures in accordance with the Declaration and the terms
of the Securities.
9. Amendments. If any proposed amendment to the
Declaration provides for, or the Regular Trustees otherwise
propose to effect, (i) any action that would adversely
affect the powers, preferences or special rights of the
Securities, whether by way of amendment to the Declaration
or otherwise, or (ii) the dissolution, winding-up or
termination of the Trust, other than as described in Section
8.1 of the Declaration, then the Holders of outstanding
Securities, as a single class, will be entitled to vote on
such amendment or proposal (but not on any other amendment
or proposal) and such amendment or proposal shall not be
effective except with the approval of the Holders of at
least 66-2/3 in liquidation amount of the Securities
affected thereby, provided that a reduction of the aggregate
liquidation amount or the distribution rate, or a change in
the payment dates or maturities of the Preferred Securities
shall not be permitted without the consent of each holder of
the Preferred Securities. In the event any amendment or
proposal referred to in clause (i) above would adversely
affect only the Preferred Securities or the Common
Securities, then only the affected class will be entitled to
vote on such amendment or proposal and such amendment or
proposal shall not be effective except with the approval of
66-2/3 in liquidation amount of such class of Securities.
10. Pro Rata. A reference in these terms of the
Securities to any payment, distribution or treatment as
being "Pro Rata" shall mean pro rata to each Holder of
Securities according to the aggregate liquidation amount of
the Securities held by the relevant Holder in relation to
the aggregate liquidation amount of all Securities outstand
ing unless, in relation to a payment, an Event of Default
under the Indenture has occurred and is continuing, in which
case any funds available to make such payment shall be paid
first to each Holder of the Preferred Securities pro rata
according to the aggregate liquidation amount of Preferred
Securities held by the relevant Holder relative to the
aggregate liquidation amount of all Preferred Securities
outstanding, and only after satisfaction of all amounts owed
to the Holders of the Preferred Securities, to each Holder
of Common Securities pro rata according to the aggregate
liquidation amount of Common Securities held by the relevant
Holder relative to the aggregate liquidation amount of all
Common Securities outstanding.
11. Ranking. The Preferred Securities rank pari
passu and payment thereon shall be made Pro Rata with the
Common Securities except that when an Event of Default
occurs and is continuing, the rights of Holders of the
Common Securities to payment in respect of Distributions and
payments upon liquidation, redemption and otherwise are
subordinated to the rights to payment of the Holders of the
Preferred Securities.
12. Listing. The Regular Trustees shall use
their best efforts to cause the Preferred Securities to be
listed for quotation on the New York Stock Exchange, Inc.
13. Acceptance of Securities Guarantee and
Indenture. Each Holder of Preferred Securities and Common
Securities, by the acceptance thereof, agrees to the
provisions of the Preferred Securities Guarantee, including
the subordination provisions therein and to the provisions
therein and to the provisions of the Indenture.
14. No Preemptive Rights. The Holders of the
Securities shall have no preemptive rights to subscribe for
any additional Securities.
15. Miscellaneous. These terms constitute a part
of the Declaration.
The Sponsor will provide a copy of the Declaration
and the Preferred Securities Guarantee to a Holder without
charge on written request to the Sponsor at its principal
place of business.
Annex I
Form of Preferred Security Certificate
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL
CERTIFICATE INSERT - This Preferred Security is a Global
Certificate within the meaning of the Declaration
hereinafter referred to and is registered in the name of The
Depository Trust Company (the "Depositary") or a nominee of
the Depositary. This Preferred Security is exchangeable for
Preferred Securities registered in the name of a person
other than the Depositary or its nominee only in the limited
circumstances described in the Declaration and no transfer
of this Preferred Security as a whole (except by the
Depositary to a nominee of the Depositary or by a nominee of
the Depositary to the Depositary or another nominee of the
Depository) may be registered except in limited
circumstances.
Unless this Preferred Security is presented by an
authorized representative of The Depository Trust Company
(55 Water Street, New York, New York) to the Trust or its
agent for registration of transfer, exchange or payment, and
any Preferred Security issued is registered in the name of
Cede & Co. or such other name as is requested by an
authorized representative of The Depository Trust Company
and any payment hereon is made to Cede & Co., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A
PERSON IS WRONGFUL since the registered owner hereof, Cede &
Co., has an interest herein.]
Certificate Number Number of Preferred Securities
CUSIP NO.
Certificate Evidencing Preferred Securities
of
KCPL FINANCING __
Preferred Securities
(Liquidation Amount $25 per Preferred Security)
KCPL FINANCING __, a business trust formed under
the laws of the State of Delaware (the "Trust"), hereby
certifies that ________ (the "Holder") is the registered
owner of preferred securities of the Trust representing
undivided beneficial interests in the assets of the Trust
designated the ____% Trust Originated Preferred Securities
(liquidation amount $25 per Preferred Security) (the
"Preferred Securities"). The 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. The designation, rights, privileges,
restrictions, preferences and other terms and provisions of
the Preferred Securities represented hereby are issued and
shall in all respects be subject to the provisions of the
Amended and Restated Declaration of Trust of the Trust dated
as of ____________, 199_, as the same may be amended from
time to time (the "Declaration"), including the designation
of the terms of the Preferred Securities as set forth in
Exhibit A to the Declaration. Capitalized terms used herein
but not defined herein shall have the respective meanings
given them in the Declaration. The Holder is entitled to
the benefits of the Preferred Securities Guarantee to the
extent provided therein. The Trust will provide a copy of
the Declaration and the Preferred Securities Guarantee to
the Holder without charge upon written request to the Trust
at its principal place of business.
Upon receipt of this certificate, the Holder is
bound by the Declaration and is entitled to the benefits
thereunder.
By acceptance, the Holder agrees to treat the
Subordinated Debentures as indebtedness and the Preferred
Securities as evidence of indirect beneficial ownership in
the Subordinated Debentures.
IN WITNESS WHEREOF, the Trust has executed this
certificate this ________ day of ________, ________.
_________________________
as Trustee
By: ____________________
_________________________
as Trustee
By: ____________________
__________________________
as Trustee
_________________________
as Trustee
__________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and
transfers this Preferred Security Certificate to:
____________________________________________________________
____________________________________________________________
____________________________________
(Insert assignee's social security or tax identification
number)
____________________________________________________________
____________________________________________________________
____________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
____________________________________________________________
agent to transfer this Preferred Security 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
Preferred Security Certificate.)
Annex II
Form of Common Security Certificate
Certificate Number Number of Common Securities
Certificate Evidencing Common Securities
of
KCPL FINANCING __
Common Securities
(Liquidation Amount $25 per Common Security)
KCPL FINANCING __, a business trust formed under
the laws of the State of Delaware (the "Trust"), hereby
certifies that _____ (the "Holder") is the registered owner
of common securities of the Trust representing undivided
beneficial interests in the assets of the Trust designated
the ____% Trust Originated Common Securities (liquidation
amount $25 per Common Security) (the "Common Securities").
The Common 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. The designation, rights,
privileges, restrictions, preferences and other terms and
provisions of the Common Securities represented hereby are
issued and shall in all respects be subject to the
provisions of the Amended and Restated Declaration of Trust
of the Trust dated as of ____________, 199_, as the same may
be amended from time to time (the "Declaration"), including
the designation of the terms of the Common Securities as set
forth in Exhibit A to the Declaration. Capitalized terms
used herein but not defined herein shall have the respective
meanings given them in the Declaration. The Holder is
entitled to the benefits of the Common Securities Guarantee
to the extent provided therein. The Trust will provide a
copy of the Declaration and the Common Securities Guarantee
to the Holder without charge upon written request to the
Trust at its principal place of business.
Upon receipt of this certificate, the Holder is
bound by the Declaration and is entitled to the benefits
thereunder.
By acceptance, the Holder agrees to treat the
Subordinated Debentures as indebtedness and the Common
Securities as evidence of indirect beneficial ownership in
the Subordinated Debentures.
IN WITNESS WHEREOF, the Trust has executed this
certificate this ____ day of ________, ________.
_________________________
as Trustee
By: ____________________
_________________________
as Trustee
By: ____________________
_________________________
as Trustee
_________________________
as Trustee
______________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers
this Common Security Certificate to:
____________________________________________________________
____________________________________________________________
(Insert assignee's social security or tax identification
number)
____________________________________________________________
____________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
____________________________________________________________
agent to transfer this Common Security 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
Common Security Certificate.)