FORM OF
AMENDED
AND
RESTATED
DECLARATION OF TRUST
TABLE OF CONTENTS
ARTICLE 1: INTERPRETATION AND DEFINITIONS.....................................1
SECTION 1.1 INTERPRETATION AND DEFINITIONS.................................1
ARTICLE 2: TRUST INDENTURE ACT...............................................12
SECTION 2.1 TRUST INDENTURE ACT; APPLICATION..............................12
SECTION 2.2 LISTS OF HOLDERS OF THE SECURITIES............................12
SECTION 2.3 REPORTS BY THE PROPERTY TRUSTEE...............................13
SECTION 2.4 PERIODIC REPORTS TO THE PROPERTY TRUSTEE......................13
SECTION 2.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT..............13
SECTION 2.6 TRUST ENFORCEMENT EVENTS; WAIVER..............................13
SECTION 2.7 TRUST ENFORCEMENT EVENT; NOTICE...............................14
ARTICLE 3: ORGANIZATION......................................................15
SECTION 3.1 NAME AND ORGANIZATION.........................................15
SECTION 3.2 OFFICE........................................................15
SECTION 3.3 PURPOSE.......................................................15
SECTION 3.4 AUTHORITY......................................................15
SECTION 3.5 TITLE TO PROPERTY OF THE TRUST................................16
SECTION 3.6 POWERS AND DUTIES OF THE REGULAR TRUSTEES......................16
SECTION 3.7 PROHIBITION OF ACTIONS BY THE TRUST AND THE TRUSTEES...........18
SECTION 3.8 POWERS AND DUTIES OF THE PROPERTY TRUSTEE.....................19
SECTION 3.9 CERTAIN DUTIES AND RESPONSIBILITIES OF THE PROPERTY TRUSTEE....21
SECTION 3.10 CERTAIN RIGHTS OF PROPERTY TRUSTEE...........................22
SECTION 3.11 DELAWARE TRUSTEE.............................................24
SECTION 3.12 EXECUTION OF DOCUMENTS.......................................25
SECTION 3.13 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.......25
SECTION 3.14 DURATION OF TRUST............................................25
SECTION 3.15 MERGERS......................................................25
SECTION 3.16 PROPERTY TRUSTEE MAY FILE PROOFS OF CLAIM....................27
ARTICLE 4: THE SPONSOR.......................................................27
SECTION 4.1 RESPONSIBILITIES OF THE SPONSOR...............................27
SECTION 4.2 INDEMNIFICATION AND EXPENSES OF THE TRUSTEES..................28
ARTICLE 5: THE HOLDERS OF THE COMMON SECURITIES..............................28
SECTION 5.1 SENIOR DEFERRABLE NOTES ISSUER'S PURCHASE OF
THE COMMON SECURITIES........................................28
SECTION 5.2 COVENANTS OF THE SENIOR DEFERRABLE NOTES ISSUER...............29
ARTICLE 6: THE TRUSTEES......................................................29
SECTION 6.1 NUMBER OF TRUSTEES............................................29
SECTION 6.2 DELAWARE TRUSTEE; ELIGIBILITY.................................29
SECTION 6.3 PROPERTY TRUSTEE; ELIGIBILITY.................................30
SECTION 6.4 QUALIFICATIONS OF THE REGULAR TRUSTEES GENERALLY..............30
SECTION 6.5 INITIAL REGULAR TRUSTEES......................................30
SECTION 6.6 APPOINTMENT, REMOVAL AND RESIGNATION OF THE TRUSTEES..........31
SECTION 6.7 VACANCIES AMONG TRUSTEES......................................32
SECTION 6.8 EFFECT OF VACANCIES...........................................32
SECTION 6.9 MEETINGS......................................................32
SECTION 6.10 DELEGATION OF POWER BY THE REGULAR TRUSTEES..................33
SECTION 6.11 MERGER, CONSOLIDATION, CONVERSION OR
SUCCESSION TO BUSINESS......................................33
ARTICLE 7: TERMS OF THE SECURITIES...........................................33
SECTION 7.1 GENERAL PROVISIONS REGARDING THE SECURITIES...................33
SECTION 7.2 DISTRIBUTIONS.................................................36
SECTION 7.3 REDEMPTION OF SECURITIES......................................37
SECTION 7.4 REDEMPTION PROCEDURES.........................................38
SECTION 7.5 VOTING RIGHTS OF THE PREFERRED SECURITIES.....................39
SECTION 7.6 VOTING RIGHTS OF THE COMMON SECURITIES........................41
SECTION 7.7 PAYING AGENT..................................................42
SECTION 7.8 LISTING.......................................................43
SECTION 7.9 TRANSFER OF THE PREFERRED SECURITIES..........................43
SECTION 7.10 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES............44
SECTION 7.11 DEEMED HOLDERS...............................................44
SECTION 7.12 GLOBAL SECURITIES............................................44
SECTION 7.13 REMARKETING..................................................47
ARTICLE 8: DISSOLUTION AND TERMINATION OF THE TRUST...........................49
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SECTION 8.1 DISSOLUTION AND TERMINATION OF THE TRUST......................49
SECTION 8.2 LIQUIDATION DISTRIBUTION UPON DISSOLUTION OF THE TRUST........50
ARTICLE 9: LIMITATION OF LIABILITY OF HOLDERS OF THE SECURITIES,
THE DELAWARE TRUSTEE AND OTHERS..................................51
SECTION 9.1 LIABILITY.....................................................51
SECTION 9.2 EXCULPATION...................................................51
SECTION 9.3 FIDUCIARY DUTY.................................................52
SECTION 9.4 INDEMNIFICATION...............................................52
SECTION 9.5 OUTSIDE BUSINESSES............................................55
ARTICLE 10: ACCOUNTING.......................................................55
SECTION 10.1 FISCAL YEAR..................................................55
SECTION 10.2 CERTAIN ACCOUNTING MATTERS...................................56
SECTION 10.3 BANKING......................................................56
SECTION 10.4 WITHHOLDING..................................................56
ARTICLE 11: AMENDMENTS AND MEETINGS..........................................57
SECTION 11.1 AMENDMENTS...................................................57
SECTION 11.2 MEETINGS OF THE HOLDERS OF THE SECURITIES; ACTION
BY WRITTEN CONSENT..........................................59
ARTICLE 12: REPRESENTATIONS OF THE PROPERTY TRUSTEE AND
THE DELAWARE TRUSTEE............................................60
SECTION 12.1 REPRESENTATIONS AND WARRANTIES OF THE PROPERTY TRUSTEE........60
SECTION 12.2 REPRESENTATIONS AND WARRANTIES OF THE DELAWARE TRUSTEE.......61
ARTICLE 13: MISCELLANEOUS....................................................61
SECTION 13.1 NOTICES......................................................61
SECTION 13.2 GOVERNING LAW................................................62
SECTION 13.3 INTENTION OF THE PARTIES.....................................63
SECTION 13.4 HEADINGS.....................................................63
SECTION 13.5 SUCCESSORS AND ASSIGNS.......................................63
SECTION 13.6 PARTIAL ENFORCEABILITY.......................................63
SECTION 13.7 COUNTERPARTS.................................................63
iii
AMENDED AND RESTATED DECLARATION OF TRUST
This Amended and Restated Declaration of Trust ("Declaration"), dated
as of September , 1999, by and among UtiliCorp United Inc., a Delaware
corporation, as Sponsor, Dale J. Wolf, Ellen E. Fairchild, and Kenneth C. Jones,
as the initial Regular Trustees, Bank One Trust Company, NA, as the initial
Property Trustee, and Bank One Delaware, Inc., as the initial Delaware Trustee,
not in their individual capacities but solely as Trustees, and the Holders, from
time to time, of the Securities representing undivided beneficial ownership
interests in the assets of the Trust to be issued pursuant to this Declaration.
WHEREAS, the Trustees and the Sponsor established UCU Capital Trust I
(the "Trust"), a business trust under the Business Trust Act, pursuant to a
Declaration of Trust dated as of August 30, 1999, (the "Original Declaration")
and a Certificate of Trust (the "Certificate of Trust") filed with the Secretary
of State of the State of Delaware on August 30, 1999; and
WHEREAS, the sole purpose of the Trust shall be to sell and issue
certain securities representing undivided beneficial interests in the assets of
the Trust, to invest the proceeds from such sales in the Senior Deferrable Notes
issued by the Senior Deferrable Notes Issuer and to engage in only those
activities necessary or incidental thereto; and
WHEREAS, the parties hereto, by this Declaration, amend and restate
each and every term and provision of the Original Declaration.
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a business trust under the Business Trust Act and that
this Declaration constitute the governing instrument of such business trust, the
trustees hereby declare that all assets contributed to the Trust be held in
trust for the benefit of the Holders, from time to time, of the Securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE 1: INTERPRETATION AND DEFINITIONS
SECTION 1.1 Interpretation and Definitions. Unless the context
otherwise requires:
(a) capitalized terms used in this Declaration but not defined in the
preamble above shall have the meanings assigned to them in this Section 1.1;
(b) a term defined anywhere in this Declaration shall have the same
meaning throughout;
(c) all references to "the Declaration" or "this Declaration" shall be
to this Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles, Sections, Recitals
and Exhibits shall be to Articles and Sections of, or Recitals and Exhibits to,
this Declaration unless otherwise specified;
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(e) unless otherwise defined in this Declaration, a term defined in the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), shall have
the same meaning when used in this Declaration; and
(f) a reference to the singular shall include the plural and vice
versa, and a reference to any masculine form of a term shall include the
feminine or neuter form of a term, as applicable.
(g) the following terms shall have the following meanings:
"Affiliate" of any specified Person shall mean any other Person
directly or indirectly controlling or controlled by, or under direct or indirect
common control with, such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person shall mean the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" shall have meanings correlative to
the foregoing.
"Applicable Margin" shall mean the spread determined as set forth
below, based on the prevailing rating of the senior notes of the Senior
Deferrable Notes Issuer in effect at the close of business on the Business Day
immediately preceding the date of a Failed Remarketing:
PREVAILING RATING SPREAD
----------------- ------
AA/ "Aa"........................... 3.00%
A/ "a"............................. 4.00%
BBB/ "Baa"......................... 5.00%
Below BBB/ "Baa"................... 7.00%
For purposes of this definition, the "prevailing rating" of the Remarketed
Securities shall be:
(i) AA/ "Aa" if the senior notes of the Senior Deferrable Notes Issuer
have a credit rating of AA or better by S&P and "Aa3" or better by Moody's or
the equivalent of such ratings by such agencies or a comparable rating agency or
comparable rating agencies selected by the Remarketing Agent (after consultation
with the Company);
(ii) if not under clause (i) above, then A/"a" if the senior notes of
the Senior Deferrable Notes Issuer have a credit rating of A- or better by S&P
and "A3" or better by Moody's or the equivalent of such ratings by such agencies
or a comparable rating agency or comparable rating agencies selected by the
Remarketing Agent (after consultation with the Company);
(iii) if not under clauses (i) or (ii) above, then BBB/"Baa" if the
senior notes of the Senior Deferrable Notes Issuer have a credit rating of BBB-
or better by S&P and "Baa" or better by Moody's or the equivalent of such
ratings by such agencies or a comparable rating agency or comparable rating
agencies selected by the Remarketing Agent (after consultation with the
Company); or
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(iv) if not under clauses (i) through (iii) above, then Below
BBB/"Baa".
Notwithstanding the foregoing, (A) if (i) the credit rating of the
senior notes of the Company by S&P shall be on the "Credit Watch" of S&P with a
designation of "negative implications" or "developing," or (ii) the credit
rating of the senior notes of the Company by Moody's shall be on the "Corporate
Credit Watch List" of Moody's with a designation of "downgrade" or "uncertain,"
or, in each case, on any successor list of S&P or Moody's with a comparable
designation, the prevailing ratings of the senior notes of the Company shall be
deemed to be within a range one full level lower in the above table than those
actually assigned to the senior notes of the Company by Moody's and S&P and (B)
if the senior notes of the Company are rated by only one rating agency on or
before the Remarketing Date, the prevailing rating shall at all times be
determined without reference to the rating of any other rating agency; provided
that if no such rating agency shall have in effect a rating for the senior notes
of the Company, and the Remarketing Agent is unable to identify a comparable
rating agency or rating agencies, as required above, the prevailing rating shall
be Below BBB/ "baa."
"Applicable Ownership Interest" shall mean, with respect to a PEPS
Units and the U.S. treasury securities in the Treasury Portfolio, (A) a 1/40, or
2.5%, undivided beneficial ownership interest in a $1,000 face amount of a
principal or interest strip in a U.S. treasury security included in such
Treasury Portfolio that matures on or prior to November 16, 2002 and (B) for
each scheduled interest payment date on the Senior Deferrable Notes after the
Tax Event Redemption Date, a 1/40, or 2.5%, undivided beneficial ownership
interest in a $1,000 face amount of such U.S. treasury security that is a
principal or interest strip maturing on such date.
"Applicable Principal Amount" shall mean either (A) if the Tax Event
Redemption Date occurs prior to the Purchase Contract Settlement Date, the
aggregate principal amount of the Senior Deferrable Notes corresponding to the
aggregate stated liquidation amount of the Preferred Securities that are
components of the PEPS Units on the Tax Event Redemption Date or (B) if the Tax
Event Redemption Date occurs on or after the Purchase Contract Settlement Date,
the aggregate principal amount of the Senior Deferrable Notes corresponding to
the aggregate stated liquidation amount of the Preferred Securities outstanding
on such Tax Event Redemption Date.
"Authorized Officer" of a Person shall mean any Person that is
authorized to bind such Person.
"Beneficial Owner" shall mean, with respect to a Global Security, a
Person who is the beneficial owner of such book-entry interest as reflected on
the books of the Depositary or on the books of a Person maintaining an account
with such Depositary (directly as a Depositary Participant or as an indirect
participant, in each case in accordance with the rules of such Depositary).
"Business Day" shall mean any day other than a Saturday or Sunday or a
day on which banking institutions in New York City are authorized or required by
law or executive order to remain closed or a day on which the principal office
of the Indenture Trustee or the Property Trustee is closed for business.
3
"Business Trust Act" shall mean Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section 3801 et seq., as it may be amended from time to time,
or any successor legislation.
"Cash Settlement" shall have the meaning specified in the Purchase
Contract Agreement.
"Certificate" shall mean a Common Security Certificate or a Preferred
Security Certificate.
"Closing Date" shall mean the date on which the Preferred Securities
are issued and sold.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, or any successor legislation. A reference to a specific section of
the Code refers not only to-such specific section but also to any corresponding
provision of any federal tax statute enacted after the date of this Declaration,
as such specific section or corresponding provision is in effect on the date of
application of the provisions of this Declaration containing such reference.
"Collateral Agent" shall mean Chase Manhattan Trust Company,
National Association.
"Commission" shall mean the Securities and Exchange Commission.
"Common Security" shall have the meaning specified in Section
7.1(a)(ii).
"Common Security Certificate" shall mean a definitive certificate in
fully registered form representing a Common Security, substantially in the form
of Exhibit B hereto.
"Company" shall mean UtiliCorp United Inc., a Delaware corporation, the
Sponsor, Senior Deferrable Notes Issuer, and the parent of the Trust.
"Compounded Distributions" shall have the meaning specified in Section
7.2(b).
"Corporate Trust Office" shall mean the principal office of the
Property Trustee at which, at any particular time, its corporate trust business
shall be administered, which office at the date hereof is located at One First
National Plaza, Suite 0126, Chicago, Illinois 60670, Attn: Corporate Trust
Services Division.
"Covered Person" shall mean (A) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates and (B) any Holder.
"Depositary" shall mean, with respect to Securities issuable in whole
or in part in-the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as depositary for
such Securities, and initially shall be The Depository Trust Company.
4
"Depositary Participant" shall mean a member of, or participant in, the
Depositary.
"Direct Action" shall have the meaning specified in Section 3.8(e).
"Distribution" shall mean a distribution payable to the Holders in
accordance with Section 7.2.
"Exchange Act" shall mean the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time, and the
rules and regulations promulgated thereunder.
"Failed Remarketing" shall have the meaning specified in Section
7.13(h).
"Fiduciary Indemnified Person" shall have the meaning set forth in
Section 9.4(b).
"Fiscal Year" shall have the meaning specified in Section 10.1.
"Global Security" shall mean a global Preferred Security Certificate
registered in the name of a Depositary or its nominee.
"Guarantee" shall mean the Guarantee Agreement, dated as of September
_____, 1999, of the Sponsor, as may be amended from time to time, in respect of
the Preferred Securities.
"Holder" shall mean any holder of Preferred Securities or Common
Securities, as registered on the books and records of the Trust, such holder
being a beneficial owner within the meaning of the Business Trust Act, provided
that in determining whether the Holders of the requisite liquidation amount of
Preferred Securities have voted on any matter provided for in this Declaration,
then for the purpose of such determination only (and not for any other purpose
hereunder), if the Preferred Securities remain in the form of one or more Global
Securities and if the Depositary that is the holder of such Global Securities
has sent an omnibus proxy to the Depositary Participants to whose accounts the
Preferred Securities are credited on the record date, the term "Holders" shall
mean such Depositary Participants acting at the direction of the Beneficial
Owners.
"Indemnified Person" shall mean a Senior Deferrable Notes Issuer
Indemnified Person or a Fiduciary Indemnified Person.
"Indenture" shall mean the indenture dated as of November 1, 1990, as
supplemented by a twelfth supplemental indenture relating to the Senior
Deferrable Notes, dated as of September _____, 1999, between the Senior
Deferrable Notes Issuer and the Indenture Trustee (including the provisions of
the Trust Indenture Act that are deemed incorporated therein), pursuant to which
the Senior Deferrable Notes are to be issued.
"Indenture Event of Default" shall have the meaning given to the term
"Event of Default" in the Indenture.
5
"Indenture Trustee" shall mean Bank One Trust Company, NA (formerly The
First National Bank of Chicago), in its capacity as trustee under the Indenture,
until a successor is appointed thereunder, and thereafter shall mean such
successor trustee.
"Investment Company" shall mean an investment company as defined in the
Investment Company Act and the regulations promulgated thereunder.
"Investment Company Act" shall mean the Investment Company Act of 1940,
as amended from time to time, or any successor legislation.
"Legal Action" shall have the meaning specified in Section 3.6(f).
"List of Holders" shall have the meaning specified in Section 2.2(a).
"Majority in Liquidation Amount" shall mean, except as provided in the
terms of the Preferred Securities or by the Trust Indenture Act, Holders of
outstanding Securities, voting together as a single class, or, as the context
may require, Holders of outstanding Preferred Securities voting separately as a
class, who are the record owners of more than 50% of the aggregate liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accumulated and unpaid Distributions to the date
upon which the voting percentages are determined) of all outstanding Securities
or Preferred Securities, as the case may be.
"Moody's" shall mean Moody's Investors Service, Inc.
"New York Stock Exchange" shall mean the New York Stock Exchange, Inc
or any successor thereto.
"Officers' Certificate" shall mean, when delivered by the Trust, a
certificate signed by a majority of the Regular Trustees of the Trust and, when
delivered by the Sponsor, a certificate signed by (A) the Chairman of the Board,
President or a Vice President of the Sponsor and (B) the Treasurer, Assistant
Treasurer or Secretary of the Sponsor. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for in this
Declaration shall include, where applicable:
(i) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions relating thereto;
(ii) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
(iii) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(iv) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
6
"Over-allotment Option" shall mean any over-allotment option contained
in an underwriting agreement pursuant to which the PEPS Units are sold.
"Paying Agent" shall have the meaning specified in Section 3.8(h).
"Payment Amount" shall have the meaning specified in Section 7.2(c).
"PEPS Units" shall mean a security consisting of a unit comprised of
(A) a purchase contract under which (i) the holder of the unit will purchase
from the Company, for $25.00 in cash, a certain number of shares of common
stock, par value $1.00 per share, of the Company and (ii) the Senior Deferrable
Notes Issuer will pay such holder contract adjustment payments and (B)
beneficial ownership of a Preferred Security or Senior Deferrable Note, or in
certain circumstances following the occurrence of a Tax Event, the appropriate
Applicable Ownership Interest of the Treasury Portfolio.
"Person" shall mean a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Pledge Agreement" shall mean the Pledge Agreement dated as of
September _____, 1999 among the Company, the Collateral Agent, Chase
Manhattan Trust Company National Association, as Securities Intermediary, and
the Purchase Contract Agent.
"Preferred Security" shall have the meaning specified in Section
7.1(a)(i).
"Preferred Security Certificate" shall mean a definitive certificate in
fully registered form representing a Preferred Security, substantially in the
form of Exhibit A.
"Primary Treasury Dealer" shall mean a primary U.S. government
securities dealer in New York City.
"Property Account" shall have the meaning specified in Section 3.8(c)
"Property Trustee" shall mean the Trustee meeting the eligibility
requirements set forth in Section 6.3.
"Pro Rata" shall mean pro rata to each Holder according to the
aggregate liquidation amount of the Securities held by such Holder in relation
to the aggregate liquidation amount of all Securities outstanding.
"Purchase Contract Agent" shall mean Bank One Trust Company, NA.
"Purchase Contract Agreement" shall mean the Purchase Contract
Agreement dated as of September __, 1999 between the Company and Bank One Trust
Company, NA, as Purchase Contract Agent.
"Purchase Contract Settlement Date" shall mean November 16, 2002.
7
"Quorum" shall mean a majority of the Regular Trustees or, if there are
only two Regular Trustees, both of them.
"Quotation Agent" shall mean (A) Morgan Stanley & Co. Incorporated and
any respective successor, provided that if Morgan Stanley & Co. Incorporated or
any respective successor ceases to be a Primary Treasury Dealer, the Sponsor
shall substitute another Primary Treasury Dealer therefor or (B) any other
Primary Treasury Dealer selected by the Sponsor.
"Redemption Amount" shall mean, for each Debenture, the product of the
principal amount of such Debenture and a fraction, the numerator of which shall
be the Treasury Portfolio Purchase Price and the denominator of which shall be
the Applicable Principal Amount.
"Redemption/Distribution Notice" shall have the meaning specified in
Section 7.4(a).
"Redemption Price" shall mean the amount for which the Securities will
be redeemed, which amount will equal the lesser of (i) the redemption price paid
by the Senior Deferrable Notes Issuer to repay or redeem, in whole or in part,
the Senior Deferrable Notes held by the Trust plus an amount equal to
accumulated and unpaid Distributions on such Securities through the date of
their redemption or (ii) the amount received by the Trust in respect of the
Senior Deferrable Notes so repaid or redeemed.
"Regular Trustee" shall mean any trustee of the Trust other than the
Property Trustee and the Delaware Trustee.
"Remarketing" shall mean the operation of the procedures for
remarketing specified in Section 7.13.
"Remarketed Securities" shall mean (i) so long as the Trust has not
been dissolved, the Preferred Securities or (ii) if the Trust has been
dissolved, the Senior Deferrable Notes.
"Remarketing Agent" shall mean Morgan Stanley & Co. Incorporated or if
the Remarketing Agent is removed, any successor remarketing agent selected by
the Sponsor.
"Remarketing Agreement" shall mean the Remarketing Agreement dated as
of September __, 1999 among the Company, the Trust and the Remarketing Agent.
"Remarketing Date" shall mean the third Business Day preceding November
16, 2002.
"Remarketing Settlement Date" shall mean the date, if any, on which the
settlement of the Remarketed Securities has occurred through the normal
settlement procedures in effect at such time of the Depositary or any successor
Depositary.
"Reset Rate" shall mean the distribution rate per annum, as determined
by the Remarketing Agent, that results from the Remarketing pursuant to Section
7.13.
8
"Responsible Officer" shall mean, with respect to the Property Trustee,
any officer with direct responsibility for the administration of this
Declaration and also shall mean, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred due to that officer's
knowledge of and familiarity with the particular subject.
"Rule 3a-5" shall mean Rule 3a-5 under the Investment Company Act or
any successor rule thereunder.
"S&P" shall mean Standard & Poor's Corporation.
"Scheduled Remarketing Settlement Date" shall mean the date, if any, on
which the settlement of the Remarketed Securities is scheduled to occur.
"Securities" shall mean the Common Securities and the Preferred
Securities.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time, or any successor legislation.
"Security Registrar" shall have the meaning specified in Section
7.9(b).
"Senior Deferrable Notes" shall mean the series of senior deferrable
notes to be issued by the Senior Deferrable Notes Issuer under the Indenture and
to be purchased by the Trust and held by the Property Trustee.
"Senior Deferrable Notes Issuer" shall mean UtiliCorp United Inc., a
Delaware corporation, in its capacity as issuer of the Senior Deferrable Notes
under the Indenture.
"Senior Deferrable Notes Issuer Indemnified Person" shall mean (A) any
Regular Trustee, (B) any Affiliate of any Regular Trustee, (C) any officers,
directors, shareholders, members, partners, employees, representatives or agents
of any Regular Trustee or any Affiliate thereof or (D) any officer, employee or
agent of the Trust or its Affiliates.
"66 2/3% in Liquidation Amount" shall mean Holders of outstanding
Securities, voting together as a single class, or, as the context may require,
Holders of outstanding Preferred Securities voting separately as a class, who
are the record owners of 66 2/3% or more of the aggregate liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accumulated and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities or Preferred
Securities, as the case may be.
"Sponsor" shall mean UtiliCorp United Inc., a Delaware corporation, or
any successor entity in a merger, consolidation, conversion, amalgamation or
replacement by or conveyance, transfer or lease of its properties substantially
as an entirety, in its capacity as sponsor of the Trust.
"Successor Delaware Trustee" shall have the meaning specified in
Section 6.6(b).
"Successor Entity" shall have the meaning specified in Section
3.15(b)(i).
9
"Successor Property Trustee" shall have the meaning specified in
Section 6.6(b).
"Successor Security" shall have the meaning specified in Section
3.15(b)(i)(B).
"Supermajority" shall have the meaning specified in Section 2.6(a)(ii).
"Tax Event" shall mean the receipt by the Sponsor and the Trust of an
opinion of counsel, rendered by Blackwell Sanders Peper Martin LLP or another
law firm having a recognized national tax practice, to the effect that, as a
result of any amendment to, change in or announced proposed change in the laws
(or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or as a result of any
official administrative decision, pronouncement, judicial decision or action
interpreting or applying such laws or regulations, which amendment or change is
effective or which proposed change, pronouncement, action or decision is
announced on or after the Closing Date, there is more than an insubstantial
increase in the risk that (i) the Trust is, or within 90 days of the date of
such opinion will be, subject to United States federal income tax with respect
to income received or accrued on the Senior Deferrable Notes, (ii) interest
payable by the Senior Deferrable Notes Issuer on the Senior Deferrable Notes is
not, or within 90 days of the date of such opinion will not be, deductible by
the Senior Deferrable Notes Issuer, in whole or in part, for United States
federal income tax purposes, or (iii) the Trust is, or within 90 days of the
date of such opinion will be, subject to more than a de minimis amount of other
taxes, duties or other governmental charges.
"Tax Event Redemption" shall mean that a Tax Event has occurred and is
continuing and the Senior Deferrable Notes have been called for redemption
pursuant to the Indenture.
"Tax Event Redemption Date" shall mean the date of the Tax Event
Redemption specified by the Senior Deferrable Notes Issuer.
"10% in Liquidation Amount" shall mean, except as provided in the terms
of the Preferred Securities or by the Trust Indenture Act, Holder(s) of
outstanding Securities, voting together as a single class, or, as the context
may require, Holders of outstanding Preferred Securities or Holders of
outstanding Common Securities, voting separately as a class, who are the record
owners of 10% or more of the aggregate liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus
accumulated and unpaid Distributions to the date upon which the voting
percentages are determined) of all outstanding Securities of the relevant class.
"Termination Event" shall have the meaning set forth in Section 1.1 of
the Purchase Contract Agreement.
"Treasury PEPS Units" shall mean a PEPS Units with respect to which
Treasury Securities have been substituted for the Preferred Securities or
Applicable Ownership Interest of the Treasury Portfolio component, as
applicable.
"Treasury Portfolio" shall mean, with respect to the Applicable
Principal Amount of Senior Deferrable Notes, a portfolio of zero-coupon U.S.
treasury securities consisting of (i)
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principal or interest strips of U.S. treasury securities that mature on or prior
to the Purchase Contract Settlement Date in an aggregate amount at maturity
equal to the Applicable Principal Amount and (ii) with respect to each scheduled
interest payment date on the Senior Deferrable Notes that occurs after the Tax
Event Redemption Date, principal or interest strips of U.S. treasury securities
that mature on or prior to such date in an aggregate amount at maturity equal to
the aggregate interest payment that would have been due on the Applicable
Principal Amount of the Senior Deferrable Notes on such date.
"Treasury Regulations" shall mean the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Department of the Treasury, as such regulations may be amended from time
to time (including corresponding provisions of succeeding regulations).
"Treasury Securities" shall mean zero-coupon U.S. Treasury Securities
(CUSIP Number 912833 FR6) with a principal amount at maturity equal to $1,000
and maturing on November 15, 2002, the business day preceding the Purchase
Contract Settlement Date.
"Trust" shall have the meaning specified in the Recitals hereto.
"Trust Enforcement Event" in respect of the Securities shall mean that
an Indenture Event of Default has occurred and is continuing in respect of the
Senior Deferrable Notes.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation.
"Trustee" or "Trustees" shall mean each Person that has signed this
Declaration as a trustee, so long as such Person continues in office in
accordance with the terms hereof, and all other Persons that from time to time
may be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
"Two-Year Benchmark Treasury Rate" shall mean the bid side rate
displayed at 10:00 A.M., New York City time, on the third Business Day
immediately preceding the Purchase Contract Settlement Date for direct
obligations of the United States (which may be obligations traded on a
when-issued basis only) having a maturity comparable to the remaining term to
maturity of the Senior Deferrable Notes, as agreed upon by the Company and the
Remarketing Agent in the Telerate system (or if the Telerate system is (a) no
longer available on the third Business Day immediately preceding the Purchase
Contract Settlement Date or (b) in the opinion of the Remarketing Agent (after
consultation with the Company) no longer an appropriate system from which to
obtain such rate, such other nationally recognized quotation system as, in the
opinion of the Remarketing Agent (after consultation with the Company) is
appropriate. If such rate is not so displayed, the rate for the Two-Year
Benchmark Treasury Rate shall be, as calculated by the Remarketing Agent, the
yield to maturity for the Preferred Securities, expressed as a bond equivalent
on the basis of a year of 365 or 366 days, as applicable, and applied on a daily
basis, and computed by taking the arithmetic mean of the secondary market bid
rates, as of 10:30 A.M., New York City time, on the third Business Day
immediately
11
preceding the Purchase Contract Settlement Date of three leading United States
government securities dealers selected by the Remarketing Agent (after
consultation with the Company) (which may include the Remarketing Agent or an
affiliate thereof).
ARTICLE 2: TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration and, to the
extent applicable, shall be governed by such provisions.
(b) The Property Trustee shall be the only Trustee that is a trustee
for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Declaration
conflicts with the duties imposed by Sections 310 to 317, inclusive, of the
Trust Indenture Act, such imposed duties of the Trust Indenture Act shall
control.
(d) The application of the Trust Indenture Act to this Declaration
shall not affect the Trust's classification as a grantor trust for United States
federal income tax purposes and shall not affect the nature of the Securities as
equity securities representing undivided beneficial interests in the assets of
the Trust.
SECTION 2.2 Lists of Holders of the Securities.
(a) Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide the Property Trustee a list of the names and addresses of the
Holders of the Securities in such form as the Property Trustee may reasonably
require ("List of Holders") (i) as of the record date relating to the payment of
any Distribution, at least one Business Day prior to the date for payment of
such Distribution, except while the Preferred Securities are represented by one
or more Global Securities, and (ii) at any other time, within 30 days of receipt
by the Trust of a written request from the Property Trustee for a List of
Holders as of a date no more than 15 days before such List of Holders is
provided to the Property Trustee. If at any time the List of Holders does not
differ from the most recent List of Holders provided to the Property Trustee by
the Sponsor and the Regular Trustees on behalf of the Trust, then neither the
Sponsor nor the Regular Trustees shall be obligated to deliver such List of
Holders. The Property Trustee shall preserve, in as current a form as is
reasonably practicable, all information contained in Lists of Holders provided
to it or that it receives in its capacity as Paying Agent (if acting in such
capacity); provided that the Property Trustee may destroy any List of Holders
previously provided to it on receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations under, and
shall be entitled to the benefits of, Sections 311(a), 311(b) and 312(b) of the
Trust Indenture Act.
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SECTION 2.3 Reports by the Property Trustee.
Within 60 days after May 15 of each year (commencing with the year of
the first anniversary of the issuance of the Preferred Securities), the Property
Trustee shall provide to the Holders of the Preferred Securities such reports as
are required by Section 313 of the Trust Indenture Act, if any, in the form and
in the manner provided by Section 313 of the Trust Indenture Act. The Property
Trustee also shall comply with the requirements of Section 313(d) of the Trust
Indenture Act.
SECTION 2.4 Periodic Reports to the Property Trustee.
Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and the compliance
certificate required by Section 314 of the Trust Indenture Act in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Declaration that relate to
any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) may be given in the form of an Officers' Certificate.
SECTION 2.6 Trust Enforcement Events; Waiver.
(a) The Holders of a Majority in Liquidation Amount of the Preferred
Securities may waive, by vote or written consent, on behalf of the Holders of
all of the Preferred Securities, any past Trust Enforcement Event in respect of
the Preferred Securities and its consequences, provided that if the underlying
Indenture Event of Default:
(i) is not waivable under the Indenture, then the Trust Enforcement
Event under this Declaration also shall not be waivable; and
(ii) requires the vote or consent of the holders of greater than a
majority in principal amount of the Senior Deferrable Notes (a "Supermajority")
to be waived under the Indenture, the related Trust Enforcement Event under this
Declaration only may be waived by the vote or written consent of the Holders of
at least the same Supermajority in aggregate stated liquidation amount of the
Preferred Securities outstanding.
The foregoing provisions of this Section 2.6 shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act, and Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such
Trust Enforcement Event in respect of the Preferred Securities shall be deemed
to have been cured for every purpose of this Declaration and the Preferred
Securities, but no such waiver shall extend to any subsequent or other Trust
13
Enforcement Event with respect to the Preferred Securities or impair any right
consequent thereon. Any waiver by the Holders of the Preferred Securities of a
Trust Enforcement Event with respect to the Preferred Securities also shall be
deemed to constitute a waiver by the Holders of the Common Securities of any
such Trust Enforcement Event with respect to the Common Securities for all
purposes of this Declaration without any further act, vote or consent of the
Holders of the Common Securities.
(b) The Holders of the Common Securities may waive, by vote or written
consent, any past Trust Enforcement Event in respect of the Common Securities
and its consequences, provided that if the underlying Indenture Event of Default
is not waivable under the Indenture, then, except where the Holders of the
Common Securities have been deemed to have waived such Trust Enforcement as
provided below in this Section 2.6(b), the related Trust Enforcement Event under
this Declaration also shall not be waivable. The Holders of the Common
Securities shall be deemed to have waived any and all Trust Enforcement Events
in respect of the Common Securities and the consequences thereof until all Trust
Enforcement Events in respect of the Preferred Securities have been cured,
waived or otherwise eliminated. Until all Trust Enforcement Events in respect of
the Preferred Securities have been so cured, waived or otherwise eliminated, the
Property Trustee shall be deemed to be acting solely on behalf of the Holders of
the Preferred Securities, and only the Holders of the Preferred Securities shall
have the right to direct the Property Trustee. The foregoing provisions of this
Section 2.6(b) shall be in lieu of Sections 316(a)(1)(A) and 316(a)(1)(B) of the
Trust Indenture Act, and Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust
Indenture Act are hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Subject to the foregoing
provisions of this Section 2.6(b), upon such cure, waiver or other elimination,
any Trust Enforcement Event in respect of the Common Securities shall be deemed
to have been cured for every purpose of this Declaration and the Common
Securities, but no such waiver shall extend to any subsequent or other Trust
Enforcement Event with respect to the Common Securities or impair any right
consequent thereon.
(c) A waiver of an Indenture Event of Default under the Indenture by
the Property Trustee at the direction of the Holders of the Preferred Securities
shall constitute a waiver of the corresponding Trust Enforcement Event under
this Declaration. Any such waiver by the Holders of the Preferred Securities
also shall be deemed to constitute a waiver by the Holders of the Common
Securities of any such Trust Enforcement Event with respect to the Common
Securities for all purposes of this Declaration without any further act, vote or
consent of the Holders of the Common Securities. The foregoing provisions of
this Section 2.6(c) shall be in lieu of Section 316(a)(1)(B) of the Trust
Indenture Act, and Section 316(a)(1)(B) of the Trust Indenture Act is hereby
expressly excluded from this Declaration and the Securities, as permitted by the
Trust Indenture Act.
SECTION 2.7 Trust Enforcement Event; Notice.
(a) Within 90 days after the occurrence of a Trust Enforcement Event
actually known to a Responsible Officer of the Property Trustee, the Property
Trustee shall transmit by mail, first class postage prepaid, to the Holders of
the Securities, notice of such Trust Enforcement Event, unless such Trust
Enforcement Event has been cured before the giving of such notice; provided
that, except for a default in the payment of principal of (or premium, if any)
or interest on any of
14
the Senior Deferrable Notes, the Property Trustee shall be protected in
withholding such notice if and so long as a Responsible Officer of the Property
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders of the Securities.
(b) The Property Trustee shall not be deemed to have knowledge of any
Trust Enforcement Event except for:
(i) a default under Sections 501(l) and 501(2) of the Indenture; or
(ii) any default as to which the Property Trustee shall have received
written notice or of which a Responsible Officer of the Property Trustee charged
with the administration of this Declaration shall have actual knowledge.
ARTICLE 3: ORGANIZATION
SECTION 3.1 Name and Organization.
The Trust hereby continued is named "UCU Capital Trust I," as such name
may be modified from time to time by the Regular Trustees following written
notice to the Holders of the Securities. The Trust's activities may be conducted
under the name of the Trust or any other name deemed advisable by the Regular
Trustees.
SECTION 3.2 Office.
The address of the principal office of the Trust is in care of
UtiliCorp United Inc., 20 West Ninth Street, Kansas City, Missouri 64105. On ten
Business Days' written notice to the Holders of the Securities, the Regular
Trustees may designate another principal office.
SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to issue and
sell the Securities, (b) to use the gross proceeds from such sale to acquire the
Senior Deferrable Notes and (c) except as otherwise limited herein, to engage in
only those other activities necessary or incidental thereto. The Trust shall not
borrow money, issue debt, reinvest proceeds derived from investments, pledge any
of its assets or otherwise undertake (or permit to be undertaken) any activity
that would cause the Trust not to be classified as a grantor trust for United
States federal income tax purposes.
By the acceptance of this Trust, none of the Trustees, the Sponsor, the
Holders of the Preferred Securities or the Common Securities or the Beneficial
Owners of the Preferred Securities will take any position that is contrary to
the classification of the Trust as a grantor trust for United State federal
income tax purposes.
SECTION 3.4 Authority.
(a) Subject to the limitations provided in this Declaration and to the
specific duties of the Property Trustee, the Regular Trustees shall have
exclusive authority to carry out the purposes of the Trust. Any action taken by
the Regular Trustees in accordance with their powers
15
shall constitute the act of and shall serve to bind the Trust, and any action
taken by the Property Trustee in accordance with its powers shall constitute the
act of and shall serve to bind the Trust. In dealing with the Trustees acting on
behalf of the Trust, no person shall be required to inquire into the authority
of the Trustees to bind the Trust. Persons dealing with the Trust are entitled
to rely conclusively on the power and authority of the Trustees as set forth in
this Declaration.
(b) Except as expressly set forth in this Declaration and except if a
meeting of the Regular Trustees is called with respect to any matter over which
the Regular Trustees have power to act, any power of the Regular Trustees may be
exercised by or with the consent of any one such Regular Trustee.
(c) Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act or applicable law, any Regular
Trustee may delegate to any other natural person over the age of 21, by power of
attorney consistent with applicable law, his or her power for the purposes of
signing any documents that the Regular Trustees have power and authority to
cause the Trust to execute pursuant to Section 3.6.
SECTION 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the Senior Deferrable
Notes and the Property Account or as otherwise provided in this Declaration,
legal title to all assets of the Trust shall be vested in the Trust. The Holders
of the Securities shall not have legal title to any part of the assets of the
Trust but shall have undivided beneficial ownership interests in the assets of
the Trust.
SECTION 3.6 Powers and Duties of the Regular Trustees.
The Regular Trustees shall have the exclusive power, duty and authority
to cause the Trust to engage in the following activities:
(a) to issue and sell the Securities in accordance with this
Declaration; provided that the Trust may issue no more than one series of
Preferred Securities and no more than one series of Common Securities; and
provided further that there shall be no interests in the Trust other than the
Securities, and the issuance of the Securities shall be limited to a one-time,
simultaneous issuance of both Preferred Securities and Common Securities on the
Closing Date, subject to the issuance of additional Securities pursuant to the
exercise of any Over-allotment Option;
(b) to acquire the Senior Deferrable Notes with the proceeds of the
sale of the Securities; provided that the Regular Trustees shall cause legal
title to the Senior Deferrable Notes to be held of record in the name of the
Property Trustee for the benefit of the Holders of the Securities;
(c) to give the Sponsor and the Property Trustee prompt written notice
of the occurrence of a Tax Event; provided that the Regular Trustees shall
consult with the Sponsor and the Property Trustee before taking or refraining
from taking any action in relation to any such Tax Event;
16
(d) to establish a record date with respect to all actions to be taken
hereunder that require a record date to be established, including and with
respect to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of the Securities as to such actions and applicable
record dates;
(e) to take all actions and perform such duties as may be required of
the Regular Trustees pursuant to the terms of this Declaration and the
Securities;
(f) to bring or defend, pay, collect, compromise, arbitrate, resort to
legal action or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.8(e), the Property Trustee has
the exclusive power to bring such Legal Action;
(g) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors and
consultants to conduct only those services that the Regular Trustees have
authority to conduct directly, and to pay reasonable compensation for such
services;
(h) to cause the Trust to comply with the Trust's obligations under the
Trust Indenture Act;
(i) to give to the Property Trustee the certificate required by Section
314(a)(4) of the Trust Indenture Act, which certificate may be executed by any
Regular Trustee;
(j) to incur expenses that are necessary or incidental to carry out any
of the purposes of the Trust;
(k) to act as, or appoint another Person to act as, registrar and
transfer agent for the Securities;
(l) to take all action that may be necessary or appropriate for the
preservation and continuation of the Trust's valid existence, rights, franchise
and privileges as a statutory business trust under the laws of the State of
Delaware and of each other jurisdiction in which such existence is necessary to
protect the limited liability of the Holders of the Securities or to enable the
Trust to effect the purposes for which it was created;
(m) to take any action not inconsistent with applicable law that the
Regular Trustees determine in their discretion to be necessary or desirable in
carrying out the purposes and functions of the Trust as set forth in Section 3
or the activities of the Trust as set forth in this Section 3.6, including:
(i) causing the Trust not to be deemed to be an Investment
Company required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified as a grantor trust for
United States federal income tax purposes; and
17
(iii) cooperating with the Senior Deferrable Notes Issuer to
ensure that the Senior Deferrable Notes will be treated as indebtedness
of the Senior Deferrable Notes Issuer for United States federal income
tax purposes;
(n) to take all action necessary to cause all applicable tax returns
and tax information reports that are required to be filed with respect to the
Trust to be duly prepared and filed;
(o) to prepare, execute and file a certificate of cancellation of the
Certificate of Trust of the Trust pursuant to Section 8.1(b); and
(p) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
The Regular Trustees shall exercise the powers set forth in this
Section 3.6 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Regular Trustees shall have no power
to, and shall not, take any action that is inconsistent with the purposes and
functions of the Trust set forth in Section 3.3.
Subject to this Section 3.6, the Regular Trustees shall have none of
the powers or the authority of the Property Trustee set forth in Section 3.8.
Any expenses incurred by the Regular Trustees pursuant to this Section
3.6 shall be reimbursed by the Senior Deferrable Notes Issuer.
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.
(a) The Trust shall not, and the Trustees (including the Property
Trustee) shall cause the Trust not to, engage in any activity other than as
required or authorized by this Declaration. In particular, the Trust shall not
and the Trustees (including the Property Trustee) shall cause the Trust not to:
(i) invest any proceeds received by the Trust in connection
with its ownership of the Senior Deferrable Notes, but shall distribute
all such proceeds to the Holders of the Securities pursuant to the
terms of this Declaration and of the Securities;
(ii) acquire any assets other than as expressly provided
herein;
(iii) possess property for any purpose other than a Trust
purpose;
(iv) make any loans or incur any indebtedness;
(v) possess any power or otherwise act in such a way as to
vary the Trust's assets;
(vi) possess any power or otherwise act in such a way as to
vary the terms of the Securities in any way whatsoever (except to the
extent expressly authorized in this Declaration or by the terms of the
Securities);
18
(vii) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the
Securities;
(viii) other than as provided in this Declaration, (A) direct
the time, method and place of exercising any trust or power conferred
upon the Indenture Trustee with respect to the Senior Deferrable Notes,
(B) waive any past default that is waivable under the Indenture, (C)
exercise a right to rescind or annul any declaration that the principal
of all the Senior Deferrable Notes shall be due and payable or (D)
consent to any amendment, modification or termination of the Indenture
or the Senior Deferrable Notes where such consent is required, unless
the Trust has received an opinion of counsel to the effect that such
modification will not cause more than an insubstantial increase in the
risk that the Trust will not be classified as a grantor trust for
United States federal income tax purposes;
(ix) take any action inconsistent with the status of the Trust
as grantor trust for United States federal income tax purposes; or
(x) revoke any action previously authorized or approved by
vote of the Holders of the Preferred Securities.
SECTION 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Senior Deferrable Notes shall be owned by
and held of record in the name of the Property Trustee in trust for the benefit
of the Trust and the Holders of the Securities. The right, title and interest of
the Property Trustee to the Senior Deferrable Notes shall vest automatically in
each Person that hereafter may be appointed as Property Trustee in accordance
with Section 6.6. Such vesting and cessation of title shall be effective whether
or not conveyancing documents with regard to the Senior Deferrable Notes have
been executed and delivered.
(b) The Property Trustee shall not transfer its right, title and
interest in the Senior Deferrable Notes to the Regular Trustees nor to the
Delaware Trustee (if the Property Trustee does not also act as Delaware
Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing
trust account (the "Property Account") in the name of and under the
exclusive control of the Property Trustee on behalf of the Holders of
the Securities and, upon the receipt of payments of funds made in
respect of the Senior Deferrable Notes, deposit such funds into the
Property Account and make payments to the Holders of the Securities
from the Property Account in accordance with Section 7.2. Funds in the
Property Account shall be held uninvested until disbursed in accordance
with this Declaration. The Property Account shall be an account that is
maintained with a banking institution, the rating on whose long-term
unsecured indebtedness is at least equal to the rating assigned to the
Company's senior notes by a "nationally recognized statistical rating
organization" within the meaning of Rule 436(g)(2) under the Securities
Act;
19
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption of the Securities to
the extent the Senior Deferrable Notes are redeemed or mature; and
(iii) upon written direction by the Sponsor to dissolve the
Trust, to engage in such ministerial activities as shall be necessary
or appropriate to effect the distribution of the Senior Deferrable
Notes to the Holders of the Securities in exchange for the Securities.
(d) The Property Trustee shall take all actions and perform such duties
as may be specifically required of the Property Trustee pursuant to the terms of
this Declaration and the Securities.
(e) The Property Trustee shall take any Legal Action that arises out of
or in connection with (i) a Trust Enforcement Event of which a Responsible
Officer of the Property Trustee has actual knowledge or (ii) the Property
Trustee's duties and obligations under this Declaration or the Trust Indenture
Act; provided that if a Trust Enforcement Event has occurred and is continuing
and such event is attributable to the failure of the Senior Deferrable Notes
Issuer to pay interest or principal on the Senior Deferrable Notes on the date
such interest or principal is otherwise payable (or in the case of redemption,
on the redemption date), then a Holder of Preferred Securities may institute a
proceeding directly against the Senior Deferrable Notes Issuer to enforce
payment to such Holder of the principal or interest on Senior Deferrable Notes
having an aggregate principal amount equal to the aggregate liquidation amount
of the Preferred Securities of such Holder (a "Direct Action").
(f) The Property Trustee shall continue to serve as a Trustee until
either:
(i) the Trust has been completely liquidated and the proceeds
of the liquidation have been distributed to the Holders of the
Securities pursuant to the terms of the Securities; or
(ii) a Successor Property Trustee has been appointed and has
accepted that appointment in accordance with Section 6.6.
(g) The Property Trustee shall have the legal power to exercise all of
the rights, powers and privileges of a holder of Senior Deferrable Notes under
the Indenture and, if a Trust Enforcement Event actually known to a Responsible
Officer of the Property Trustee occurs and is continuing, the Property Trustee
shall enforce, for the benefit of Holders of the Securities, its rights as
holder of the Senior Deferrable Notes subject to the rights of the Holders of
the Securities pursuant to the terms of such Securities.
(h) The Property Trustee may authorize one or more Persons (each, a
"Paying Agent") to pay Distributions, redemption payments or liquidation
payments on behalf of the Trust with respect to all Securities, and any such
Paying Agent shall comply with Section 317(b) of the Trust Indenture Act. Any
Paying Agent may be removed by the Property Trustee at any time, and a successor
Paying Agent or additional Paying Agents may be appointed at any time by the
Property Trustee.
20
(i) Subject to this Section 3.8, the Property Trustee shall have none
of the duties, liabilities, powers or the authority of the Regular Trustees set
forth in Section 3.6.
The Property Trustee shall exercise the powers set forth in this
Section 3.8 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Property Trustee shall have no power
to, and shall not, take any action that is inconsistent with the purposes and
functions of the Trust set out in Section 3.3.
SECTION 3.9 Certain Duties and Responsibilities of the Property
Trustee.
(a) The Property Trustee, before the occurrence of any Trust
Enforcement Event and after the cure or waiver of all Trust Enforcement Events
that may have occurred, shall undertake to perform only such duties as are
specifically set forth in this Declaration, and no implied covenants shall be
read into this Declaration against the Property Trustee. If a Trust Enforcement
Event has occurred (that has not been cured or waived pursuant to Section 2.6)
of which a Responsible Officer of the Property Trustee has actual knowledge, the
Property Trustee shall exercise such of the rights and powers vested in it by
this Declaration and shall use the same degree of care and skill in its exercise
as a prudent person would exercise or use under the circumstances in the conduct
of his or her own affairs.
(b) No provision of this Declaration shall be construed to relieve the
Property Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of a Trust Enforcement Event and
after the cure or waiver of all such Trust Enforcement Events that may
have occurred:
(A) the duties and obligations of the Property
Trustee shall be determined solely by the
express provisions of this Declaration, and
the Property Trustee shall not be liable
except for the performance of such duties
and obligations as are specifically set
forth in this Declaration, and no implied
covenants or obligations shall be read into
this Declaration against the Property
Trustee; and
(B) in the absence of bad faith on the part of
the Property Trustee, the Property Trustee
may conclusively rely, as to the truth of
the statements and the correctness of the
opinions expressed therein, upon any
certificates or opinions furnished to the
Property Trustee and conforming to the
requirements of this Declaration; but in the
case of any such certificates or opinions
that by any provision hereof are
specifically required to be furnished to the
Property Trustee, the Property Trustee shall
be under a duty to examine such certificates
or opinions to determine whether or not they
conform to the requirements of this
Declaration;
21
(ii) the Property Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer of the
Property Trustee, unless it has been proven that the Property
Trustee was negligent in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect
to any action taken or omitted to be taken by it without negligence,
in good faith in accordance with the direction of the Holders of not
less than a Majority in Liquidation Amount of the Securities
relating to the time, method and place of conducting any proceeding
for any remedy available to the Property Trustee, or exercising any
trust or power conferred upon the Property Trustee under this
Declaration;
(iv) no provision of this Declaration shall require the
Property Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties
or in the exercise of any of its rights or powers, if it has
reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Declaration or indemnity reasonably satisfactory to the Property
Trustee against such risk or liability is not reasonably assured to
it;
(v) the Property Trustee's sole duty with respect to the
custody, safe-keeping and physical preservation of the Senior
Deferrable Notes and the Property Account shall be to deal with such
property in a similar manner as the Property Trustee deals with
similar property for its own account, subject to the protections and
limitations on liability afforded to the Property Trustee under this
Declaration and the Trust Indenture Act;
(vi) the Property Trustee shall have no duty or liability
for or with respect to the value, genuineness, existence or
sufficiency of the Senior Deferrable Notes or the payment of any
taxes or assessments levied thereon or in connection therewith;
(vii) the Property Trustee shall not be liable for any
interest on any money received by it except as it otherwise may
agree with the Sponsor. Money held by the Property Trustee need not
be segregated from other funds held by it except in relation to the
Property Account maintained by the Property Trustee pursuant to
Section 3.8(c)(i) and except to the extent otherwise required by
law; and
(viii) the Property Trustee shall not be responsible for
monitoring the compliance by the Regular Trustees or the Sponsor
with their respective duties under this Declaration, nor shall the
Property Trustee be liable for any default or misconduct of the
Regular Trustees or the Sponsor.
SECTION 3.10 Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) The Property Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other
22
evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed, sent or presented by the
proper party or parties.
(ii) Any direction or act of the Sponsor contemplated by this
Declaration shall be sufficiently evidenced by an Officers'
Certificate.
(iii) Whenever in the administration of this Declaration, the
Property Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder,
the Property Trustee (unless other evidence is herein specifically
prescribed) may request, in the absence of bad faith on its part, and
conclusively rely upon an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Sponsor.
(iv) The Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any rerecording, refiling or registration thereof.
(v) The Property Trustee may consult with counsel of its
choice or other experts, and the advice or opinion of such counsel and
experts with respect to legal matters or advice within the scope of
such experts' area of expertise shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with such
advice or opinion. Such counsel may be counsel to the Sponsor or any of
its Affiliates and may include any of its employees. The Property
Trustee shall have the right at any time to seek instructions
concerning the administration of this Declaration from any court of
competent jurisdiction.
(vi) The Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration
at the request or direction of any Holder of Securities, unless such
Holder of Securities has provided to the Property Trustee security and
indemnity, reasonably satisfactory to the Property Trustee, against the
costs, expenses (including attorneys' fees and expenses and the
expenses of the Property Trustee's agents, nominees or custodians) and
liabilities that might be incurred by it in complying with such request
or direction, including such reasonable advances as may be requested by
the Property Trustee; provided that nothing contained in this Section
3.10(a) shall be taken to relieve the Property Trustee, upon the
occurrence of an Indenture Event of Default, of its obligation to
exercise the rights and powers vested in it by this Declaration.
(vii) The Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Property Trustee, in
its discretion, may make such further inquiry or investigation into
such facts or matters as it sees fit.
(viii) The Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents, custodians,
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nominees or attorneys, and the Property Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
(ix) Any action taken by the Property Trustee or its agents
hereunder shall bind the Trust and the Holders of the Securities, and
the signature of the Property Trustee or its agents alone shall be
sufficient and effective to perform any such action, and no third party
shall be required to inquire as to the authority of the Property
Trustee to so act or as to its compliance with any of the terms and
provisions of this Declaration, both of which shall be evidenced
conclusively by the Property Trustee's or its agent's taking such
action.
(x) Whenever in the administration of this Declaration the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Property Trustee (A) may request instructions from the
Holders of the Securities, which instructions only may be given by the
Holders of the same proportion in liquidation amount of the Securities
as would be entitled to direct the Property Trustee under this
Declaration in respect of such remedy, right or action, (B) may refrain
from enforcing such remedy or right or taking such other action until
such instructions are received and (C) shall be protected in
conclusively relying on or acting in accordance with such instructions.
(xi) Except as otherwise expressly provided by this
Declaration, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Declaration.
(xii) The Property Trustee shall not be liable for any action
taken, suffered or omitted to be taken by it without negligence, in
good faith and reasonably believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Declaration.
(b) No provision of this Declaration shall be deemed to impose any duty
or obligation on the Property Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty.
SECTION 3.11 Delaware Trustee.
Notwithstanding any other provision of this Declaration other than
Section 6.2, the Delaware Trustee shall not be entitled to exercise any
powers of, nor shall the Delaware Trustee have any of the duties and
responsibilities of, trustees described in this Declaration. Except as set
forth in Section 6.2, the Delaware Trustee shall be a Trustee for the sole
and limited purpose of fulfilling the requirements of Section 3807(a) of the
Business Trust Act. If the Property Trustee, meeting the requirements of
Section 6.2, also acts as Delaware Trustee, this Section 3.11 shall not apply.
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SECTION 3.12 Execution of Documents.
Except as otherwise required by the Business Trust Act or
applicable law, any Regular Trustee is authorized to execute on behalf of the
Trust any documents that the Regular Trustees have the power and authority to
execute pursuant to Section 3.6.
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Declaration and the Securities
shall be taken as the statements of the Sponsor, and the Trustees do not assume
any responsibility for their correctness. The Trustees make no representations
as to the value or condition of the property of the Trust or any part thereof.
The Trustees make no representations as to the validity or sufficiency of this
Declaration, the Securities, the Senior Deferrable Notes or the Indenture.
SECTION 3.14 Duration of Trust.
The Trust shall exist until dissolved pursuant to the
provisions of Article 8 hereof.
SECTION 3.15 Mergers.
(a) The Trust may not consolidate with, convert into, amalgamate or
merge with or into, be replaced by or convey, transfer or lease its properties
and assets substantially as an entirety to any corporation or other body, except
as described in Section 3.15(b) and (c) or Section 8.2.
(b) At the request of the Sponsor and with the consent of the Regular
Trustees or, if there are more than two, a majority of the Regular Trustees and
without the consent of the Holders of the Preferred Securities, the Delaware
Trustee or the Property Trustee, the Trust may consolidate with, convert into,
amalgamate or merge with or into, be replaced by or convey, transfer or lease
its properties substantially as an entirety to a trust organized as such under
the laws of any state; provided that:
(i) if the Trust is not the successor entity, such successor
entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of
the Trust with respect to the Securities; or
(B) substitutes for the Securities other
securities having substantially the same
terms as the Securities (the "Successor
Securities"), so long as such Successor
Securities rank the same as the Securities
with respect to Distributions and payments
upon liquidation, redemption and otherwise;
(ii) the Senior Deferrable Notes Issuer expressly appoints a trustee of
such Successor Entity that possesses the same powers and duties as the Property
Trustee as the holder of the Senior Deferrable Notes;
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(iii) the Preferred Securities or any Successor Securities are or, upon
notification of issuance will be, listed on any national securities exchange or
with any other or organization on which the Preferred Securities are then listed
or quoted;
(iv) such consolidation, conversion, amalgamation, merger, replacement,
conveyance, transfer or lease does not cause the Preferred Securities (including
any Successor Securities) to be downgraded by any nationally recognized
statistical rating organization;
(v) such consolidation, conversion, amalgamation, merger, replacement,
conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the Holders of the Preferred Securities (including any
Successor Securities) in any material respect;
(vi) such Successor Entity has a purpose substantially identical to
that of the Trust;
(vii) prior to such consolidation, conversion, amalgamation, merger,
replacement, conveyance, transfer or lease, the Sponsor has received an opinion
of independent counsel to the Trust experienced in such matters to the effect
that:
(A) such consolidation, conversion,
amalgamation, merger, replacement,
conveyance, transfer or lease does not
adversely affect the rights, preferences and
privileges of the Holders of the Securities
(including any Successor Securities) in any
material respect;
(B) following such consolidation, conversion,
amalgamation, merger, replacement,
conveyance, transfer or lease, neither the
Trust nor such Successor Entity will be
required to register as an Investment
Company under the Investment Company Act;
and
(C) following such consolidation, conversion,
amalgamation or merger, replacement,
conveyance, transfer or lease, the Trust (or
such Successor Entity) will continue to be
classified as a grantor trust for United
States federal income tax purposes;
(viii) the Sponsor or any permitted successor or assignee owns
all of the Common Securities and guarantees the obligations of such
Successor Entity under the Successor Securities, at least to the extent
provided by the Guarantee; and
(ix) such Successor Entity expressly assumes all of the
obligations of the Trust.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except with
the consent of Holders of 100% in aggregate liquidation amount of the
Securities, consolidate with, convert into, amalgamate or merge with or into, be
replaced by or convey, transfer or lease its properties and assets substantially
as an entirety to, any other entity or permit any other entity to
26
consolidate with, convert into, amalgamate, merge with or into, or replace it,
if such consolidation, conversion, amalgamation, merger, replacement,
conveyance, transfer or lease would cause the Trust or any successor Entity to
be classified as other than a grantor trust for United States federal income tax
purposes or would cause each Holder of Securities not to be treated as owning an
undivided beneficial ownership interest in the Senior Deferrable Notes.
SECTION 3.16 Property Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other similar judicial proceeding relative to the Trust or any other
obligor upon the Securities or the property of the Trust or of such other
obligor or their creditors, the Property Trustee (irrespective of whether any
Distributions on the Securities are then due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Property
Trustee has made any demand on the Trust for the payment of any past due
Distributions) shall be entitled and empowered, to the fullest extent
permitted by law, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any Distributions
owing and unpaid in respect of the Securities (or, if the Securities are
original issue discount securities, such portion of the liquidation amount as
may be specified in the terms of such securities) and to file such other papers
or documents as may be necessary or advisable in order to have the claims of the
Property Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its agents and counsel) and
of the Holders of the Securities allowed in such judicial proceeding; and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities to make such payments to the Property Trustee and, in
the event the Property Trustee consents to the making of such payments directly
to the Holders, to pay to the Property Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Property
Trustee, its agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt, on behalf of any Holder
of Securities, any plan of reorganization, arrangement, adjustment or
compensation affecting the Securities or the rights of any Holder thereof or to
authorize the Property Trustee to vote in respect of the claim of any Holder of
Securities in any such proceeding.
ARTICLE 4: THE SPONSOR
SECTION 4.1 Responsibilities of the Sponsor.
In connection with the sale and issuance of the Preferred
Securities, the Sponsor shall have the exclusive right and responsibility to
engage in the following activities:
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(a) to prepare, execute and file with the Commission, on behalf of the
Trust, a registration statement on Form S-3 in relation to the Preferred
Securities, including any amendments or supplements thereto, and to take any
other action relating to the registration and sale of the Preferred Securities
under federal and state securities laws;
(b) if necessary, to determine the states in which to take appropriate
action to qualify or register for sale all or part of the PEPS Units and to do
any and all such acts, other than actions that must be taken by the Trust, and
advise the Trust of actions it must take; to prepare, execute and file, on
behalf of the Trust, any documents it deems necessary or advisable in order to
comply with the applicable laws of any such states; and to prepare, execute and
file, on behalf of the Trust, any such documents or take any acts determined by
it to be necessary in order to qualify or register all or part of the PEPS Units
in any state in which it has determined to qualify or register such PEPS Units
for sale;
(c) if necessary, to prepare, execute and file on behalf of the Trust,
an application to the New York Stock Exchange or any other national stock
exchange or the Nasdaq National Market for listing upon notice of issuance of
any Preferred Securities;
(d) if necessary, to prepare, execute and file with the Commission, on
behalf of the Trust, a registration statement on Form 8-A relating to the
registration of the Preferred Securities under Section 12(b) of the Exchange
Act, including any amendments thereto; and
(e) to negotiate the terms of, and execute and enter into, an
underwriting agreement providing for the sale of the PEPS Units and a
remarketing agreement providing for the Remarketing.
SECTION 4.2 Indemnification and Expenses of the Trustees.
The Sponsor, in its capacity as Senior Deferrable Notes Issuer,
agrees to indemnify the Regular Trustees, the Property Trustee and the
Delaware Trustee for, and to hold each of them harmless against, any loss,
liability or expense incurred without negligence or bad faith on the part of
the Regular Trustees, the Property Trustee or the Delaware Trustee, as the
case may be, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending either of them against any claim or liability in
connection with the exercise or performance of any of their respective powers
or duties hereunder. The provisions of this Section 4.2 shall survive the
resignation or removal of the Regular Trustees, the Delaware Trustee or the
Property Trustee and the termination of this Declaration.
ARTICLE 5: THE HOLDERS OF THE COMMON SECURITIES
SECTION 5.1 Senior Deferrable Notes Issuer's Purchase of the Common
Securities.
On the Closing Date, the Senior Deferrable Notes Issuer shall
purchase all of the Common Securities issued by the Trust, in an aggregate
liquidation amount equal to at least three percent of the total capital of
the Trust, at such time as the Preferred Securities are sold and issued. If
any additional Preferred Securities are issued pursuant to the exercise of
any Over-
28
allotment Option, then the Senior Deferrable Notes Issuer shall purchase, on the
date of such issuance, an amount of additional Common Securities such that the
aggregate number of Common Securities held by the Senior Deferrable Notes
Issuer, upon such purchase, will equal at least three percent of the total
capital of the Trust.
The aggregate stated liquidation amount of the Common Securities
outstanding at any time shall not be less than three percent of the total
capital of the Trust.
SECTION 5.2 Covenants of the Senior Deferrable Notes Issuer.
For so long as the Preferred Securities remain outstanding,
the Senior Deferrable Notes Issuer shall covenant (i) to maintain, directly or
indirectly, 100% ownership of the Common Securities, (ii) to cause the Trust to
remain a statutory business trust and not to voluntarily dissolve, wind up,
liquidate or be terminated, except as permitted by this Declaration, (iii) to
use its commercially reasonable efforts to ensure that the Trust will not be an
Investment Company required to be registered under the Investment Company Act
and (iv) not to take any action that would be reasonably likely to cause the
Trust to be classified as an association or a publicly traded partnership
taxable as a corporation for United States federal income tax purposes.
ARTICLE 6: THE TRUSTEES
SECTION 6.1 Number of Trustees.
The number of Trustees initially shall be five, and:
(a) at any time before the issuance of any Securities, the Sponsor may
increase or decrease the number of Trustees by written instrument; and
(b) after the issuance of any Securities, the number of Trustees may be
increased or decreased by vote of the Holders of the Common Securities at a
meeting of the Holders of the Common Securities or by written consent without
prior notice in lieu of such meeting; provided that the number of Trustees shall
be at least three; and provided further that: (i) the Delaware Trustee, in the
case of a natural person, shall be a person who is a resident of the State of
Delaware or that, if not a natural person, is an entity that has its principal
place of business in the State of Delaware and otherwise meets the requirements
of applicable law; (ii) at least one Regular Trustee is an employee or officer
of, or is affiliate with, the Sponsor; and (iii) one Trustee shall be the
Property Trustee for so long as this Declaration is required to qualify as an
indenture under the Trust Indenture Act, and such Property Trustee also may
serve as Delaware Trustee if it meets the applicable requirements.
SECTION 6.2 Delaware Trustee; Eligibility.
If required by the Business Trust Act, one Trustee (which may be the
Property Trustee) (the "Delaware Trustee") shall be:
(a) a natural person who is a resident of the State of Delaware; or
29
(b) if not a natural person, an entity that has its principal place of
business in the State of Delaware and otherwise meets the requirements of
applicable law, provided that if the Property Trustee has its principal place of
business in the State of Delaware and otherwise meets the requirements of
applicable law, then the Property Trustee also shall be the Delaware Trustee and
Section 3.11 shall have no application.
SECTION 6.3 Property Trustee; Eligibility.
(a) There shall be at all times one Trustee (which may be the Delaware
Trustee) that shall act as Property Trustee that shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under the
law of the United States of America or any state or territory thereof
or of the District of Columbia, or a corporation or other Person
permitted by the Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at
least fifty million U.S. dollars ($50,000,000) and subject to
supervision or examination by federal, state, territorial or District
of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of
the supervising or examining authority referred to above, then for the
purpose of this Section 6.3(a)(ii), the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published.
(b) If at any time the Property Trustee shall cease to be eligible to
so act under Section 6.3(a), the Property Trustee immediately shall resign in
the manner and with the effect set forth in Section 6.6(c).
(c) If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Property Trustee and the Holders of the Common Securities (as if it were the
obligor referred to in Section 310(b) of the Trust Indenture Act) shall comply
in all respects with the provisions of Section 310(b) of the Trust Indenture
Act.
(d) The Guarantee shall be deemed to be specifically described in this
Declaration for purposes of clause (i) of the first proviso contained in Section
310(b) of the Trust Indenture Act.
SECTION 6.4 Qualifications of the Regular Trustees Generally.
Each Regular Trustee shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one
or more Authorized Officers.
SECTION 6.5 Initial Regular Trustees.
The initial Regular Trustees shall be Dale J. Wolf, Ellen E.
Fairchild, and Kenneth C. Jones, the business address of all of whom is in care
of UtiliCorp United Inc., 20 West Ninth Street, Kansas City, Missouri 64105.
30
SECTION 6.6 Appointment, Removal and Resignation of the Trustees.
(a) Subject to Section 6.6(b), the Trustees may be appointed or removed
without cause at any time:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor; and
(ii) after the issuance of any Securities, by a vote of the
Holders of the Common Securities at a meeting of the Holders of the
Common Securities or by written consent without prior notice in lieu of
such meeting.
(b) The Property Trustee shall not be removed in accordance with
Section 6.6(a) or Section 7.5(k) until a successor Trustee possessing the
qualifications to act as Property Trustee under Section 6.3(a) (a "Successor
Property Trustee") has been appointed and has accepted such appointment by
written instrument executed by such Successor Property Trustee and delivered to
the Regular Trustees and the Sponsor. The Delaware Trustee shall not be removed
in accordance with Section 6.6(a) or Section 7.5(k) until a successor Trustee
possessing the qualifications to act as Delaware Trustee under Sections 6.2 and
6.4 (a "Successor Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Delaware Trustee
and delivered to the Regular Trustees and the Sponsor.
(c) A Trustee appointed to office shall hold office until a successor
has been appointed, until death or dissolution or until removal or resignation.
Any Trustee may resign from office (without need for prior or subsequent
accounting) by written instrument executed by such Trustee and delivered to the
Sponsor and the other Trustees, which resignation shall take effect upon such
delivery or upon such later date as is specified therein; provided that:
(i) no such resignation of the Property Trustee shall be
effective:
(A) until a Successor Property Trustee has been
appointed and has accepted such appointment
by written instrument executed by such
Successor Property Trustee and delivered to
the Regular Trustees, the Sponsor and the
resigning Property Trustee; or
(B) until the assets of the Trust have been
completely liquidated and the proceeds
thereof distributed to the Holders of the
Securities; and
(ii) no such resignation of the Delaware Trustee shall be
effective until a Successor Delaware Trustee has been appointed and has
accepted such appointment by written instrument executed by such
Successor Delaware Trustee and delivered to the Regular Trustees, the
Sponsor and the resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use their best efforts
to promptly appoint a Successor Property Trustee or Successor Delaware Trustee,
as the case may-be, if the
31
Property Trustee or the Delaware Trustee delivers an instrument of resignation
in accordance with this Section 6.6.
(e) If no Successor Property Trustee or Successor Delaware Trustee, as
the case may be, has been appointed and accepted appointment as provided in this
Section 6.6 within 60 days after delivery of an instrument of resignation or
removal, the resigning or removed Property Trustee or Delaware Trustee, as
applicable, may petition any court of competent jurisdiction for appointment of
a Successor Property Trustee or Successor Delaware Trustee, as applicable. Such
court may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Property Trustee or Successor Delaware Trustee, as
the case may be.
(f) No Property Trustee or Delaware Trustee shall be liable for the
acts or omissions to act of any Successor Property Trustee or Successor Delaware
Trustee, as the case may be.
SECTION 6.7 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the
number of Trustees is not reduced pursuant to Section 6.1, or if the number of
Trustees is increased pursuant to Section 6.1, a vacancy shall occur. A
resolution certifying the existence of such vacancy by the Regular Trustees or,
if there are more than two, a majority of the Regular Trustees shall be
conclusive evidence of the existence of such vacancy. The vacancy shall be
filled with a Trustee appointed in accordance with Section 6.6.
SECTION 6.8 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy,
dissolution, liquidation, incompetence or incapacity to perform the duties of a
Trustee shall not operate to annul, dissolve or terminate the Trust nor to
terminate this Declaration. Whenever a vacancy in the number of Regular Trustees
shall occur until such vacancy is filled by the appointment of a Regular Trustee
in accordance with Section 6.6, the Regular Trustees in office, regardless of
the number, shall have all the powers granted to the Regular Trustees and shall
discharge all the duties imposed upon the Regular Trustees by this Declaration.
SECTION 6.9 Meetings.
If there is more than one Regular Trustee, meetings of the
Regular Trustees shall be held from time to time upon the call of any Regular
Trustee. Regular meetings of the Regular Trustees may be held at a time and
place fixed by resolution of the Regular Trustees. Notice of any in-person
meetings of the Regular Trustees shall be hand delivered or otherwise delivered
in writing (including by facsimile, with a hard copy by overnight courier) not
less than 4 hours before such meeting. Notice of any telephonic meetings of the
Regular Trustees shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier) not less than 24
hours before a meeting. Notices shall contain a brief statement of the time,
place and anticipated purposes of the meeting. The presence (whether in person
or by telephone) of a Regular Trustee at a meeting shall constitute a waiver of
notice of such meeting except where a Regular Trustee attends a meeting for the
express purpose of objecting to the transaction of any activity on the ground
that the meeting has not been lawfully
32
called or convened. Unless provided otherwise in this Declaration, any action of
the Regular Trustees may be taken at a meeting by vote of a majority of the
Regular Trustees present (whether in person or by telephone) and eligible to
vote with respect to such matter, provided a Quorum is present, or without a
meeting and without prior notice by the unanimous written consent of the Regular
Trustees. In the event there is only one Regular Trustee, any and all action of
such Regular Trustee shall be evidenced by a written consent of such Regular
Trustee.
SECTION 6.10 Delegation of Power by the Regular Trustees.
(a) Any Regular Trustee may delegate to any natural person over the age
of 21, by power of attorney consistent with applicable law, his, her or its
power for the purpose of executing any documents contemplated in Section 3.6.
(b) The Regular Trustees shall have the power to delegate from time to
time to such of their number or to officers of the Trust the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Regular Trustees or otherwise as the Regular Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
SECTION 6.11 Merger, Consolidation, Conversion or Succession to
Business.
Any entity into which the Property Trustee, the Delaware
Trustee or any Regular Trustee that is not a natural person may be merged or
converted or with such Trustee may be consolidated, or any entity resulting from
any merger, conversion or consolidation to which such Trustee is a party, or any
entity succeeding to all or substantially all the corporate trust business of
such Trustee, shall be the successor of such Trustee hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, provided that such entity otherwise is qualified and eligible
under this Article.
ARTICLE 7: TERMS OF THE SECURITIES
SECTION 7.1 General Provisions Regarding the Securities.
(a) The Regular Trustees shall issue, on behalf of the Trust, one class
of Preferred Securities representing undivided beneficial interests in the
assets of the Trust and one class of common securities representing undivided
beneficial interests in the assets of the Trust.
(i) Preferred Securities. The Preferred Securities of the
Trust shall have an aggregate stated liquidation amount with respect to
the assets of the Trust of _____ dollars ($___________) (subject to
increase to not more than __________ dollars ($______________) in the
event of the exercise of any Over-allotment Option) and a stated
liquidation amount with respect to the assets of the Trust of $25 per
Preferred Security. The Preferred Securities are hereby designated for
identification purposes only as the Preferred Securities. The Preferred
Security Certificates shall be substantially in the form of Exhibit A
hereto, with such changes and additions thereto or deletions therefrom
as may be required by ordinary usage, custom or practice.
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(ii) Common Securities. The Common Securities of the
Trust shall have an aggregate liquidation amount with respect
to the assets of the Trust of __________________
($______________) (subject to increase to not more
__________________ dollars ($_______________) in the event of
the exercise of any Over-allotment Option) and a liquidation
amount with respect to the assets of the Trust of $25 per
Common Security. The Common Securities are hereby designated
for identification purposes only as the Common Securities. The
Common Security Certificates shall be substantially in the
form of Exhibit B hereto, with such changes and additions
thereto or deletions therefrom as may be required by ordinary
usage, custom or practice.
(b) Payment of Distributions on, and any payment of the
Redemption Price upon a redemption of, the Preferred Securities and the
Common Securities, as applicable, shall be made Pro Rata based on the
liquidation amount of such Preferred Securities and Common Securities;
provided that if on any date on which amounts payable on distribution
or redemption, an Indenture Event of Default has occurred and is
continuing, then such amounts payable shall not be made on any of the
Common Securities, and no other payment on account of the redemption,
liquidation or other acquisition of such Common Securities shall be
made, until all accumulated and unpaid Distributions, or payments of
the Redemption Price, as the case may be, on all of the outstanding
Preferred Securities for which Distributions are to be paid or that
have been called for redemption, as the case may be, are fully paid.
All funds available to the Property Trustee shall first be applied to
the payment in full in cash of all Distributions on, or the Redemption
Price of, the Preferred Securities then due and payable.
(c) The consideration received by the Trust for the issuance
of the Securities shall constitute a contribution to the capital of the
Trust and shall not constitute a loan to the Trust.
(d) Upon issuance of the Securities as provided in this
Declaration, the Securities so issued shall be validly issued, fully
paid and non-assessable beneficial ownership interests in the assets of
the Trust.
(e) Every Person, by virtue of having become a Holder of
Securities or a Beneficial Owner of Preferred Securities in accordance
with the terms of this Declaration, shall be deemed to have expressly
assented and agreed to the terms of, and shall be bound by, this
Declaration, the Guarantee, the Indenture, the Purchase Contract
Agreement, the Pledge Agreement and the Senior Deferrable Notes.
(f) The Holders of the Securities shall not have any
preemptive or similar rights.
(g) The Certificates shall be signed on behalf of the Trust by
a Regular Trustee. Such signature shall be the manual or facsimile
signature of any Regular Trustee. If a Regular Trustee of the Trust who
has signed any of the Certificates ceases to be a Regular Trustee
before such signed Certificates have been delivered by the Trust, such
Certificates nevertheless may be delivered as though the Person who
signed such Certificates had not ceased to be a Regular Trustee. Any
Certificate may be signed on behalf of the Trust by such Persons who,
at the actual date of execution of such Certificate, shall be the
Regular Trustees of the Trust, although at the date of the execution
and delivery of this Declaration any such Person was not such a Regular
34
Trustee. Certificates shall be printed, lithographed or engraved or may
be produced in any other manner as is reasonably acceptable to the
Regular Trustees, as evidenced by their execution thereof, and may have
such letters, numbers or other marks of identification or designation
and such legends or endorsements as the Regular Trustees may deem
appropriate, or as may be required to comply with any law or with any
rule or regulation of any stock exchange on which the Securities may be
listed, or to conform to usage.
A Preferred Security Certificate shall not be valid until
authenticated by the manual signature of an authorized signatory of the
Property Trustee. Such signature shall be conclusive evidence that such
Preferred Security Certificate has been authenticated under this
Declaration.
Upon a written order of the Trust signed by one Regular
Trustee, the Property Trustee shall authenticate the Preferred Security
Certificates for original issue. The aggregate number of Preferred Securities
outstanding at any time shall not exceed the liquidation amount set forth in
Section 7.1(a)(i).
The Property Trustee may appoint an authenticating agent
acceptable to the Trust, as determined by the Regular Trustees on behalf of the
Trust, to authenticate Certificates. An authenticating agent may authenticate
Certificates whenever the Property Trustee may do so. Each reference in this
Declaration to authentication by the Property Trustee shall include
authentication by such agent. An authenticating agent shall have the same rights
as the Property Trustee to deal with the Sponsor or an Affiliate of the Sponsor.
(h) The Preferred Securities Certificates, upon original issuance
(including Preferred Securities, if any, issued pursuant to the exercise of any
Over-allotment Option), shall be issued as Global Securities in the form of one
or more fully registered global Preferred Security Certificates (each a "Global
Certificate"), to be delivered to The Depository Trust Company, the initial
Depositary, by or on behalf of the Trust. Such Global Certificates initially
shall be registered on the books and records of the Trust in the name of "Cede &
Co.," the nominee of the initial Depositary. No Beneficial Owner of Preferred
Securities shall receive a definitive Preferred Security Certificate
representing such Beneficial Owner's interests in such Global Certificates,
except as provided in Section 7.12. Unless and until definitive, fully
registered Preferred Security Certificates have been issued to the Beneficial
Owners of Preferred Securities pursuant to Section 7.12,
(i) the provisions of this Section 7.1 shall be in full force
and effect;
(ii) the Trust and the Trustees shall be entitled to deal with
the Depositary for all purposes of this Declaration (including the
payment of Distributions on the Global Certificates and receiving
approvals, votes or consents thereunder) as the Holder of the Preferred
Securities and the sole of Holder of the Global Certificates and,
except as set forth herein or in Rule 3a-7 (if the Trust is excluded
from the definition of an Investment Company solely by reason of Rule
3a-7) with respect to the Property Trustee, shall have no obligation to
the Beneficial Owners of the Preferred Securities;
35
(iii) to the extent that the provisions of this Section 7.1
conflict with any other provisions of this Declaration, the provisions
of this Section 7.1 shall control; and
(iv) the rights of the Beneficial Owners of the Preferred
Securities shall be exercised only through the Depositary and shall be
limited to those established by law and agreements between such
Beneficial Owners and the clearing agency and/or the Depositary
Participants. The Depositary shall make book-entry transfers among
Depositary Participants and receive and transmit Distributions on the
Global Certificates to such Depositary Participants; provided that
solely for the purposes of determining whether the Holders of the
requisite amount of Preferred Securities have voted on any matter
provided for in this Declaration, so long as definitive Preferred
Security Certificates have not been issued, the Trustees may rely
conclusively on, and shall be protected in relying on, any written
instrument (including a proxy) delivered to the Trustees by the
Depositary setting forth the votes of the Beneficial Owners of the
Preferred Securities or assigning the right to vote on any matter to
any other Persons either in whole or in part.
Whenever a notice or other communication to the Holder of the
Preferred Securities is required to be given under this Declaration,
unless and until definitive Preferred Security Certificates have been
issued pursuant to Section 7.1(g), the Trustees shall deliver all such
notices and communications specified herein to be given to the Holders
of the Preferred Securities to the Depositary, and, with respect to any
Preferred Security Certificate registered in the name of a Depositary
or the nominee of a Depositary, the Trustees may conclusively rely on,
and shall be protected in relying on, any written instrument (including
a proxy) delivered to the Trustees by the Depositary setting forth the
votes of the Beneficial Owners of the Preferred Securities or assigning
the right to vote on any matter or any other Persons either in whole or
in part.
SECTION 7.2 Distributions.
(a) Holders of the Securities shall be entitled to receive
Distributions that shall accumulate and be payable at the rate per annum of % of
the stated liquidation amount of $25 per Security until the Remarketing
Settlement Date, and at the Reset Rate thereafter. The amount of Distributions
payable for any period shall be computed (i) for any full quarterly distribution
period, on the basis of a 360-day year of twelve 30-day months and (ii) for any
period shorter than a full quarterly distribution period, on the basis of a
30-day month and, for any period of less than one month, on the basis of the
actual number of days elapsed per 30-day month. Subject to Section 7.1(b),
Distributions shall be made on the Securities on a Pro Rata basis. Distributions
on the Securities shall accumulate from the date of original issue, shall be
cumulative and shall be payable quarterly, in arrears, on February 16, May 16,
August 16 and November 16 of each year, commencing November 16, 1999, when, as
and if available for payment, by the Property Trustee, except as otherwise
described below. Distributions shall be payable only to the extent that payments
are made to the Trust in respect of the Senior Deferrable Notes held by the
Property Trustee and to the extent that the Trust has funds available for the
payment of such Distributions in the Property Account.
36
(b) Distributions not paid on the scheduled payment date shall
accumulate and compound quarterly at the rate of % per annum through and
including the Remarketing Settlement Date, and at the Reset Rate thereafter
("Compounded Distributions"). "Distributions" shall mean ordinary cumulative
distributions together with any Compounded Distributions.
(c) If and to the extent that the Senior Deferrable Notes Issuer makes
a payment of principal of and any premium or interest on the Senior Deferrable
Notes held by the Property Trustee (the amount of any such payment being a
"Payment Amount"), the Property Trustee shall and is directed, to the extent
funds are available for that purpose, to make a Pro Rata distribution of the
Payment Amount to Holders, subject to Section 7.1(b).
(d) Distributions on the Securities shall be payable to the Holders
thereof as they appear on the register of the Trust as of the close of business
on the relevant record dates. If the Preferred Securities are represented by one
or more Global Securities, the relevant record dates shall be the close of
business on the Business Day preceding such Distribution payment date, unless a
different regular record date is established or provided for the corresponding
interest payment date on the Senior Deferrable Notes. The relevant record dates
for the Common Securities shall be the same as for the Preferred Securities. If
the Preferred Securities are not represented by one or more Global Securities,
the relevant record dates for the Preferred Securities shall be selected by the
Regular Trustees and shall be the fifteenth Business Day prior to the relevant
Distribution payment dates. At all times, the Distribution payment dates shall
correspond to the interest payment dates on the Senior Deferrable Notes.
Distributions payable on any Securities that are not punctually paid on any
Distribution payment date, as a result of the Senior Deferrable Notes Issuer
having failed to make a payment under the Senior Deferrable Notes, shall cease
to be payable to the Person in whose name such Securities are registered on the
relevant record date, and such defaulted Distribution instead shall be payable
to the Person in whose name such Securities are registered on the special record
date or other specified date determined in accordance with this Declaration. If
any date on which Distributions are payable on the Securities is not a Business
Day, then payment of the Distribution payable on such date shall be made on the
next day that is a Business Day (and without any interest or other payment in
respect of any such delay), except that if such Business Day is in the next
calendar year, such payment shall be made on the preceding Business Day, with
the same force and effect as if made on such payment date.
(e) In the event that there is any money or other property held by or
for the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata among the Holders of the Securities, subject to Section
7.1(b).
SECTION 7.3 Redemption of Securities.
(a) Upon the repayment or redemption, in whole or in part, of the Senior
Deferrable Notes held by the Trust, whether at the stated maturity of the Senior
Deferrable Notes or upon earlier redemption as provided in the Indenture, the
proceeds from such repayment or redemption shall be simultaneously applied Pro
Rata (subject to Section 7.1(b)) to redeem Securities having an aggregate
liquidation amount equal to the aggregate principal amount of the Senior
Deferrable Notes so repaid or redeemed at the Redemption Price. Holders of the
Securities shall be given not less than 30 nor more than 60 days notice of such
redemption in accordance with Section 7.4.
37
(b) If the Senior Deferrable Notes Issuer redeems the Senior
Deferrable Notes upon the occurrence and continuance of a Tax Event, the
proceeds from such redemption shall be applied by the Property Trustee to
redeem the Securities in whole (but not in part) at a redemption price per
Security equal to the Redemption Amount plus any accumulated and unpaid
Distributions thereon to the Tax Event Redemption Date. If, following the
occurrence of a Tax Event, the Senior Deferrable Notes Issuer exercises its
option to redeem the Senior Deferrable Notes, the Senior Deferrable Notes
Issuer shall appoint the Quotation Agent; if a Tax Event Redemption occurs
prior to the Purchase Contract Settlement Date, the redemption price payable
in liquidation of the Securities will be distributed to Chase Manhattan Trust
Company, NA, acting as the securities intermediary under the Pledge
Agreement, which in turn will apply that amount to purchase the Treasury
Portfolio and remit the remaining portion, if any, of such price to Bank One
Trust Company, NA, acting as the purchase contract agent under the Purchase
Contract Agreement, for payment to the Holders of the Securities. If a Tax
Event Redemption occurs after the Purchase Contract Settlement Date, the
Treasury Portfolio shall not be purchased and the Property Trustee shall
distribute to the Holders of the Securities on the Tax Event Redemption Date
the Redemption Price payable in liquidation of such Holders' interests in the
assets of the Trust.
SECTION 7.4 Redemption Procedures.
(a) Notice of any redemption of, or notice of distribution of Senior
Deferrable Notes in exchange for, the Securities (a "Redemption/Distribution
Notice"), which notice shall be irrevocable, shall be given by the Trust by mail
to each Holder of Securities to be redeemed or exchanged at least 30 but no more
than 60 days before the date fixed for redemption or exchange thereof which, in
the case of a redemption, shall be the date fixed for redemption of the Senior
Deferrable Notes. For purposes of the calculation of the date of redemption or
exchange and the dates on which notices are given pursuant to this Section
7.4(a), a Redemption/Distribution Notice shall be deemed to be given on the day
such notice is first mailed by first-class mail, postage prepaid, to the Holders
of the Securities. Each Redemption/Distribution Notice shall be addressed to the
Holders of the Securities at the address of each such Holder appearing in the
register of the Trust. No defect in the Redemption/Distribution Notice or in the
mailing of either thereof with respect to any Holder shall affect the validity
of the redemption or exchange proceedings with respect to any other Holder.
(b) Subject to the Trust's fulfillment of the notice requirements set
forth in Section 7.4(a), if Securities are to be redeemed, then (provided that
the Senior Deferrable Notes Issuer has paid the Property Trustee a sufficient
amount of cash in connection with the related redemption or maturity of the
Senior Deferrable Notes) (i) with respect to the Preferred Securities
represented by one or more Global Securities, by 12:00 noon, New York City time,
on the redemption date, the Property Trustee will deposit irrevocably with the
Depositary or its nominee funds sufficient to pay the applicable Redemption
Price, and the Property Trustee shall give the Depositary irrevocable
instructions and authority to pay the Redemption Price to the Beneficial Owners
of the Preferred Securities, and (ii) with respect to Securities not represented
by one or more Global Securities, the Property Trustee shall pay the applicable
Redemption Price to the Holders of such Securities by check mailed to the
address of each Holder appearing on the register of the Trust on the redemption
date. If any date fixed for redemption of Securities is not a Business Day, then
payment of the Redemption Price payable on such date shall be made
38
on the next Business Day (without any interest thereon), except that if
such Business Day falls in the next calendar year, such payment shall
be made on the preceding Business Day, in each case with the same force
and effect as if made on such date fixed for redemption.
Notwithstanding the foregoing, so long as the Holder of any Preferred
Securities is the Collateral Agent or the Purchase Contract Agent, the
payment of the Redemption Price in respect of the Preferred Securities
held by the Collateral Agent or the Purchase Contract Agent shall be
made no later than 12:00 noon, New York City time, on the redemption
date by check or wire transfer in immediately available funds at such
place and to such account as may be designated by the Collateral Agent
or the Purchase Contract Agent. If payment of the Redemption Price in
respect of any Securities is improperly withheld or refused and not
paid either by the Trust or by the Sponsor as guarantor pursuant to the
Guarantee, then Distributions on such Securities shall continue to
accumulate at the then applicable rate, from the original redemption
date to the actual date of payment, in which case the actual payment
date shall be the date fixed for redemption for purposes of calculating
the Redemption Price. For these purposes, the applicable Redemption
Price shall not include Distributions that are being paid to Holders of
Securities who were not Holders of Securities on a relevant record
date. If a Redemption/Distribution Notice has been given and funds have
been deposited or paid as required, then immediately prior to the close
of business on the date of such deposit or payment, Distributions will
cease to accumulate on the Securities called for redemption, and all
rights of Holders of such Securities so called for redemption shall
cease, except the right of the Holders of such Securities to receive
the Redemption Price, but without interest on such Redemption Price,
and from and after the date fixed for redemption, such Securities will
cease to be outstanding.
Neither the Regular Trustees nor the Trust shall be required
to register or cause to be registered the transfer of any Securities
that have been called for redemption, except for the unredeemed portion
of any Securities being redeemed in part.
(c) Subject to the foregoing and applicable law (including,
without limitation, United States federal securities laws), the Senior
Deferrable Notes Issuer or its Affiliates may purchase, at any time and
from time to time, outstanding Preferred Securities by tender, in the
open market or by private agreement.
SECTION 7.5 Voting Rights of the Preferred Securities.
(a) Except as provided under this Section 7.5 and Section 11.1
and as otherwise required by the Business Trust Act, the Trust
Indenture Act and other applicable law, the Holders of the Preferred
Securities shall have no voting rights.
(b) Subject to the requirement of the Property Trustee
obtaining a tax opinion in certain circumstances set forth in Section
7.5(d), the Holders of a Majority in Liquidation Amount of the
Preferred Securities, voting separately as a class, shall have the
right to direct the time, method and place of conducting any proceeding
for any remedy available to the Property Trustee, or to direct the
exercise of any trust or power conferred upon the Property Trustee
under this Declaration, including the right to direct the Property
Trustee, as Holder of the Senior Deferrable Notes, to (i) exercise the
remedies available to it under the Indenture, (ii) consent to any
amendment or modification of the Indenture or the Senior Deferrable
Notes where such consent is required or (iii) waive any past default
and its consequences that are waivable under
39
the Indenture; provided that if an Indenture Event of Default has
occurred and is continuing, then the Holders of 25% of the aggregate
stated liquidation amount of the Preferred Securities may direct the
Property Trustee to declare the principal of and interest on the Senior
Deferrable Notes due and payable; and provided further that where a
consent or action under the Indenture would require the consent or act
of the Holders of more than a majority of the aggregate principal
amount of Senior Deferrable Notes affected thereby, the Property
Trustee only may give such consent or take such action at the direction
of the Holders of at least the same proportion in aggregate stated
liquidation amount of the Preferred Securities.
(c) If the Property Trustee fails to enforce its rights under
the Senior Deferrable Notes after a Holder of Preferred Securities has
made a written request, such Holder of Preferred Securities may
institute, to the fullest extent permitted by law, a legal proceeding
directly against the Senior Deferrable Notes Issuer to enforce the
Property Trustee's rights under the Indenture without first instituting
any legal proceeding against the Property Trustee or any other Person.
In addition, if a Trust Enforcement Event has occurred and is
continuing and such event is attributable to the failure of the Senior
Deferrable Notes Issuer to make any interest, principal or other
required payments when due under the Indenture, then a Holder of
Preferred Securities may institute a Direct Action against the Senior
Deferrable Notes Issuer on or after the respective due date specified
in the Senior Deferrable Notes.
(d) The Property Trustee shall notify all Holders of the
Preferred Securities of any notice of any Indenture Event of Default
received from the Senior Deferrable Notes Issuer with respect to the
Senior Deferrable Notes. Such notice shall state that such Indenture
Event of Default also constitutes a Trust Enforcement Event. Except
with respect to directing the time, method, and place of conducting a
proceeding for a remedy, the Property Trustee shall be under no
obligation to take any of the actions described in clauses (i) and (ii)
of Section 7.5(b) above, unless the Property Trustee has obtained an
opinion of independent tax counsel to the effect that the Trust will
not fail to be classified as a grantor trust for United States federal
income tax purposes as a result of such action, and that each Holder of
Preferred Securities shall be treated as owning an undivided beneficial
ownership interest in the Senior Deferrable Notes.
(e) If the consent of the Property Trustee, as the Holder of
the Senior Deferrable Notes, is required under the Indenture with
respect to any amendment or modification of the Indenture, the Property
Trustee shall request the direction of the Holders of the Securities
with respect to such amendment or modification and shall vote with
respect to such amendment or modification as directed by a Majority in
Liquidation Amount of the Securities voting together as a single class;
provided that where a consent under the Indenture would require the
consent of the Holders of more than a majority of the aggregate
principal amount of the Senior Deferrable Notes, the Property Trustee
only may give such consent at the direction of the Holders of at least
the same proportion in aggregate stated liquidation amount of the
Securities. The Property Trustee shall not take any such action in
accordance with the directions of the Holders of the Securities unless
the Property Trustee has obtained an opinion of independent tax counsel
to the effect that the Trust will not be classified as other than a
grantor trust for United States federal income tax purposes as a result
of such action, and that each Holder will be treated as owning an
undivided beneficial ownership interest in the Senior Deferrable Notes.
40
(f) A waiver of an Indenture Event of Default with respect to
the Senior Deferrable Notes shall constitute a waiver of the
corresponding Trust Enforcement Event.
(g) Any required approval or direction of the Holders of the
Preferred Securities may be given at a separate meeting of the Holders
of the Preferred Securities convened for such purpose, at a meeting of
all of the Holders of the Securities or pursuant to written consent
without prior notice. The Regular Trustees shall cause a notice of any
meeting at which Holders of the Preferred Securities are entitled to
vote to be mailed to each Holder of record of Preferred Securities.
Each such notice shall include a statement setting forth: (i) the date
of such meeting; (ii) a description of any resolution proposed for
adoption at such meeting on which such Holders are entitled to vote;
and (iii) instructions for the delivery of proxies.
(h) No vote or consent of the Holders of the Preferred
Securities shall be required for the Trust to redeem and cancel the
Preferred Securities or distribute the Senior Deferrable Notes in
accordance with this Declaration and the terms of the Securities.
(i) Notwithstanding that the Holders of the Preferred
Securities are entitled to vote or consent under any of the
circumstances described above, any of the Preferred Securities that are
owned at such time by the Senior Deferrable Notes Issuer the Trustees
or any entity directly or indirectly controlled by, or under direct or
indirect common control with, the Senior Deferrable Notes Issuer or any
Trustee shall not be entitled to vote or consent and shall be treated,
for purposes of such vote or consent, as if such Preferred Securities
were not outstanding.
(j) Except as provided under Section 7.5(k), the Holders of
the Preferred Securities shall have no rights to appoint or remove the
Trustees, who, subject to Section 6.6, may be appointed, removed or
replaced by the Holders of the Common Securities.
(k) If an Indenture Event of Default has occurred and is
continuing, the Property Trustee and the Delaware Trustee may be
removed and replace, subject to Section 6.6(b), at such time by a
Majority in Liquidation Amount of the Preferred Securities.
SECTION 7.6 Voting Rights of the Common Securities.
(a) Except as provided under Section 6.1(b), this Section 7.6
and Section 11.1 and as otherwise required by the Business Trust Act,
the Trust Indenture Act or other applicable law or provided by this
Declaration, the Holders of the Common Securities shall have no voting
rights.
(b) Subject to Section 7.5(k), the Holders of the Common
Securities shall be entitled to vote to appoint, remove or replace any
Trustee or to increase or decrease the number of Trustees in accordance
with Article 6.
(c) Subject to Section 2.6 and only after all Trust
Enforcement Events with respect to the Preferred Securities have been
cured, waived, or otherwise eliminated and subject to the requirement
of the Property Trustee obtaining a tax opinion in certain
circumstances set forth in this paragraph (c), the Holders of the
Common Securities shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the
Property Trustee, or to direct the exercise of any trust or power
conferred upon the Property Trustee under
41
this Declaration, including the right to direct the Property Trustee,
as Holder of the Senior Deferrable Notes, to (i) exercise the remedies
available to it under the Indenture, (ii) consent to any amendment or
modification of the Indenture or the Senior Deferrable Notes where such
consent is required or (iii) waive any past default and its
consequences that are waivable under the Indenture; provided that where
a consent or action under the Indenture would require the consent or
act of the Holders of more than a majority of the aggregate principal
amount of Senior Deferrable Notes affected thereby, only the Holders of
at least the same proportion of the aggregate stated liquidation amount
of the Common Securities may direct the Property Trustee to give such
consent or take such action. Except with respect to directing the time,
method, and place of conducting a proceeding for a remedy, the Property
Trustee shall be under no obligation to take any of the actions
described in clause 7.6(c)(i) and (ii) above unless the Property
Trustee has obtained an opinion of independent tax counsel to the
effect that, as a result of such action, for United States federal
income tax purposes the Trust will not fail to be classified as a
grantor trust and each Holder will be treated as owning an undivided
beneficial ownership interest in the Senior Deferrable Notes.
(d) If the Property Trustee fails to enforce its rights under
the Senior Deferrable Notes after the Holders of the Common Securities
have made a written request, the Holders of the Common Securities may
institute, to the fullest extent permitted by law, a legal proceeding
directly against the Senior Deferrable Notes Issuer to enforce the
Property Trustee's rights under the Senior Deferrable Notes without
first instituting any legal proceeding against the Property Trustee or
any other Person.
(e) A waiver of an Indenture Event of Default with respect to
the Senior Deferrable Notes shall constitute a waiver of the
corresponding Trust Enforcement Event.
(f) Any required approval or direction of the Holders of the
Common Securities may be given at a separate meeting of the Holders of
the Common Securities convened for such purpose, at a meeting of all of
the Holders of the Securities or pursuant to written consent without
prior notice. The Regular Trustees shall cause a notice of any meeting
at which the Holders of the Common Securities are entitled to vote to
be mailed to the Holders of the Common Securities. Such notice shall
include a statement setting forth: (i) the date of such meeting; (ii) a
description of any resolution proposed for adoption at such meeting on
which the Holders of the Common Securities are entitled to vote; and
(iii) instructions for the delivery of proxies.
(g) No vote or consent of the Holders of the Common Securities
shall be required for the Trust to redeem and cancel the Common
Securities or to distribute Senior Deferrable Notes in accordance with
this Declaration and the terms of the Securities.
SECTION 7.7 Paying Agent.
If any Preferred Securities are not represented by one or more
Global Securities, the Trust shall maintain in the Borough of Manhattan, New
York City, State of New York, an office or agency where the Preferred
Securities may be presented for payment ("Paying Agent"). The Regular
Trustees shall appoint the paying agent (which shall be a bank or trust
company acceptable to the Senior Deferrable Notes Issuer) and may appoint one
or more additional paying
42
agents in such other locations as they shall determine. The term
"Paying Agent" includes any additional paying agent. The Regular
Trustees may change any Paying Agent without prior notice to the
Holders of the Securities. The Regular Trustees shall notify the
Property Trustee of the name and address of any Paying Agent not a
party to this Declaration. If the Regular Trustees, on behalf of the
Trust, fail to appoint or maintain another entity as Paying Agent, the
Property Trustee shall act as such. The Paying Agent shall be permitted
to resign as Paying Agent upon 30 days' written notice to the Property
Trustee and the Senior Deferrable Notes Issuer.
SECTION 7.8 Listing.
The Sponsor shall use its best efforts to cause the PEPS Units to be
listed for quotation on the New York Stock Exchange.
SECTION 7.9 Transfer of the Preferred Securities.
(a) The Preferred Securities initially shall be pledged,
pursuant to the terms of the Pledge Agreement, as collateral to secure
the obligations of the Holders of PEPS Units to purchase common shares
of the Company in accordance with the terms of the Purchase Contract
Agreement.
(b) The Preferred Securities may be transferred, in whole or
in part, only in accordance with the terms and conditions set forth in
this Declaration. To the fullest extent permitted by law, any transfer
or purported transfer of any Preferred Security not made in accordance
with this Declaration shall be null and void.
(c) Subject to this Section 7.9 and Section 7.12, the
Preferred Securities shall be freely transferable.
(d) The Trust shall cause to be kept at the Corporate Trust
Office a register in which, subject to such reasonable regulations as
it may prescribe, the Trust shall provide for the registration of
Preferred Securities and of transfers of Preferred Securities. The
Property Trustee is hereby appointed "Security Registrar" for the
purpose of registering Preferred Securities and transfers of Preferred
Securities as herein provided.
(e) Upon surrender for registration of transfer of any
Preferred Securities at an office or agency of the Trust designated for
such purpose, a Regular Trustee shall execute, and the Property Trustee
shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Preferred Securities of any
authorized denominations and of a like aggregate principal amount.
(f) At the option of the Holder, Securities may be exchanged
for other Preferred Securities of any authorized denominations and of a
like aggregate principal amount, upon surrender of the Preferred
Securities to be exchanged at such office or agency. Whenever any
Preferred Securities are so surrendered for exchange, a Regular Trustee
shall execute, and the Property Trustee shall authenticate and deliver,
the Preferred Securities that the Holder making the exchange is
entitled to receive.
43
(g) If so required by the Trust or the Property Trustee, every
Preferred Security presented or surrendered for registration of
transfer or for exchange shall be duly endorsed, or accompanied by a
duly executed written instrument of transfer in form satisfactory to
the Trust and the Security Registrar, by the Holder thereof or his
attorney duly authorized in writing.
(h) No service charge shall be made for any registration of
transfer or exchange of Preferred Securities, but the Trust may require
payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of
transfer or exchange of Preferred Securities.
SECTION 7.10 Mutilated, Destroyed, Lost or Stolen
Certificates.
If:
(a) any mutilated Certificates are surrendered to the Regular
Trustees, or if the Regular Trustees receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Regular Trustees such
security or indemnity as may be required by them to keep each of the
Sponsor and the Trust harmless, then, in the absence of notice that
such Certificate has been acquired by a bona fide purchaser, any
Regular Trustee shall execute and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like denomination. In connection with the issuance of
any new Certificate under this Section 7.10, the Regular Trustees may
require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any
duplicate Certificate issued pursuant to this Section 7.10 shall
constitute conclusive evidence of an ownership interest in the relevant
Securities, as if originally issued, whether or not the lost, stolen or
destroyed Certificate is found at any time.
SECTION 7.11 Deemed Holders.
The Trustees may treat the Person in whose name any Certificate is
registered on the register of the Trust as the sole holder of such
Certificate and of the Securities represented thereby for purposes of
receiving Distributions and for all other purposes whatsoever. Accordingly,
the Trustees shall not be bound to recognize any equitable or other claim to
or interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trust has actual or
other notice thereof.
SECTION 7.12 Global Securities.
The Preferred Securities initially shall be issued in the form of
one or more Global Securities. A Regular Trustee on behalf of the Trust shall
execute, and the Property Trustee shall authenticate and deliver, one or more
Global Securities that (i) shall represent and be denominated in an amount
equal to the aggregate stated liquidation amount of all of the Preferred
Securities to be issued in the form of Global Securities and not yet
canceled, (ii) shall be registered in the name of the Depositary for the
Preferred Securities or the nominee of such Depositary and (iii) shall be
delivered by the Property Trustee to such Depositary or pursuant to
44
such Depositary's instructions. Global Securities shall bear a legend
substantially to the following effect:
"This Preferred Security is a Global
Security within the meaning of the
Declaration and is registered in the name of
The Depository Trust Company, a New York
corporation (the "Depositary"), or a nominee
of the Depositary. This Preferred Security
is exchangeable for Preferred Securities
registered in the name of a person other
than the Depositary or its nominee only in
the limited circumstances described in the
Declaration, and no transfer of this
Preferred Security (other than a transfer of
this Preferred Security as a whole by the
Depositary to a nominee of the Depositary or
by a nominee of the Depositary to the
Depositary or another nominee of the
Depositary) may be reregistered except in
limited circumstances.
Unless this certificate is presented by an
authorized representative of the Depositary
to UCU Capital Trust I or its agent for
registration of transfer, exchange or
payment, and any certificate issued is
registered in the name of Cede & Co. or such
other name as requested by an authorized
representative of the Depositary (and any
payment hereon is made to Cede & Co. or to
such other entity as is requested by an
authorized representative of the
Depositary), and except as otherwise
provided in the Amended and Restated
Declaration of UCU Capital Trust I dated
September ____,1999, as amended from time to
time, ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL since the registered
owner hereof, Cede & Co., has an interest
herein."
Preferred Securities not represented by a Global Security issued in
exchange for all or a part of a Global Security pursuant to this Section 7.12
shall be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Property Trustee. Upon execution and
authentication, the Property Trustee shall deliver any Preferred Securities
not represented by a Global Security to the Persons in whose names such
definitive Preferred Securities are so registered.
At such time as all interests in Global Securities have been
redeemed, repurchased or canceled, such Global Securities shall be canceled,
upon receipt thereof, by the Property Trustee in accordance with standing
procedures of the Depositary. At any time prior to such cancellation, if any
interest in a Global Security is exchanged for Preferred Securities not
represented by a Global Security, redeemed, canceled or transferred to a
transferee who receives Preferred Securities not represented by a Global
Security, or if any Preferred Security not represented by a Global Security
is exchanged or transferred for part of a Global Security, then, in
accordance with the standing procedures of the Depositary, the liquidation
amount of such
45
Global Security shall be reduced or increased, as the case may be, and an
endorsement shall be made on such Global Security by the Property Trustee to
reflect such reduction or increase.
The Trust and the Property Trustee, as the authorized representative
of the Holders of the Preferred Securities, may deal with the Depositary for
all purposes of this Declaration, including the making of payments due on the
Preferred Securities and exercising the rights of Holders of the Preferred
Securities hereunder. The rights of any Beneficial Owner shall be limited to
those established by law and agreements between such owners and Depository
Participants; provided that no such agreement shall give to any Person any
rights against the Trust or the Property Trustee without the written consent
of the parties so affected. Multiple requests and directions from and votes
of the Depositary as the Holder of the Preferred Securities represented by
Global Securities with respect to any particular matter shall not be deemed
inconsistent to the extent they do not represent an amount of Preferred
Securities in excess of those held in the name of the Depositary or its
nominee.
If at any time the Depositary notifies the Trust that it is
unwilling or unable to continue as Depositary for the Preferred Securities or
if at any time the Depositary no longer is eligible under this Section 7.12,
the Regular Trustees shall appoint a successor Depositary with respect to the
Preferred Securities. If a successor Depositary is not appointed by the Trust
within 90 days after the Trust receives such notice or becomes aware of such
ineligibility, the Trust's election that the Preferred Securities be
represented by one or more Global Securities shall no longer be effective,
and a Regular Trustee shall execute, and the Property Trustee will
authenticate and deliver, Preferred Securities in definitive registered form,
in any authorized denominations, in an aggregate stated liquidation amount
equal to the aggregate stated liquidation amount of the Global Securities
representing the Preferred Securities in exchange for such Global Securities.
A Regular Trustee on behalf of the Trust at any time and in its sole
discretion may determine that the Preferred Securities issued in the form of
one or more Global Securities shall no longer be represented by Global
Securities. In such event a Regular Trustee on behalf of the Trust shall
execute, and the Property Trustee shall authenticate and deliver, Preferred
Securities in definitive registered form, in any authorized denominations, in
an aggregate stated liquidation amount equal to the aggregate stated
liquidation amount of the Global Securities representing the Preferred
Securities, in exchange for such Global Securities.
Notwithstanding any other provisions of this Declaration (other than
the provisions set forth in Section 7.9), Global Securities may not be
transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
Interests of Beneficial Owners may be transferred or exchanged for
Preferred Securities not represented by a Global Security, and Preferred
Securities not represented by a Global Security may be transferred or
exchanged for a Global Security or Securities, in accordance with rules of
the Depositary and the provisions of Section 7.9.
46
SECTION 7.13 Remarketing.
(a) The Senior Deferrable Notes Issuer shall request, not later than 15
nor more than 30 calendar days prior to the Remarketing Date, that the
Depositary notify the Holders of the Preferred Securities and the holders of
PEPS Units and the Treasury PEPS Units of the Remarketing and of the procedures
that must be followed if a Holder of Preferred Securities wishes to make a Cash
Settlement.
(b) Not later than 5:00 P.M., New York City time, on the seventh
Business Day preceding November 16, 2002, each Holder of Preferred Securities
may elect to have the Preferred Securities held by such Holder remarketed in the
Remarketing. Under Section 5.4 of the Purchase Contract Agreement, holders of
PEPS Units that do not give notice of their intention to make a Cash Settlement
of the Purchase Contract component of their PEPS Units prior to such time in the
manner specified in such Section, or have given such notice but fail to deliver
cash prior to 11:00 A.M., New York City time, on or prior to the fifth Business
Day preceding November 16, 2002, shall be deemed to have consented to the
disposition of the Preferred Securities comprising a component of their PEPS
Units in the Remarketing. Holders of the Preferred Securities that are not a
component of PEPS Units wishing to elect to have their Preferred Securities
remarketed shall give to the Property Trustee notice of their election prior to
11:00 A.M., New York City time on the fifth Business Day prior to November 16,
2002. Any such notice shall be irrevocable and may not be conditioned upon the
level at which the Reset Rate is established in the Remarketing. Promptly after
11:00 A.M., New York City time, on such fifth Business Day, the Property
Trustee, based on the notices received by it prior to such time (including
notices from the Purchase Contract Agent as to Purchase Contracts for which Cash
Settlement has been elected and cash received), shall notify the Trust, the
Sponsor and the Remarketing Agent of the number of Preferred Securities to be
tendered for purchase in the Remarketing.
(c) If any Holder of Preferred Securities does not give a notice of its
intention to make a Cash Settlement or gives such notice but fails to deliver
cash as-described in Section 7.13(b), or gives a notice of election to have
Preferred Securities that are not a component of PEPS Units remarketed, then the
Preferred Securities of such Holder shall be deemed tendered for purchase in the
Remarketing, notwithstanding any failure by such Holder to deliver or properly
deliver such Preferred Securities to the Remarketing Agent for purchase.
(d) The right of each Holder to have Preferred Securities tendered for
purchase shall be limited to the extent that (i) the Remarketing Agent conducts
a Remarketing pursuant to the terms of the Remarketing Agreement, (ii) the
Remarketing Agent is able to find a purchaser or purchasers for the tendered
Preferred Securities and (iii) such purchaser or purchasers deliver the purchase
price therefor to the Remarketing Agent.
(e) On the Remarketing Date, the Remarketing Agent shall use
commercially reasonable efforts to remarket, at a price at least equal to
100.25% of the aggregate stated liquidation amount thereof, the Preferred
Securities tendered or deemed tendered for purchase.
(f) If, as a result of the efforts described in 7.13(e), the
Remarketing Agent has determined that it will be able to remarket all of the
Preferred Securities tendered or deemed
47
tendered for purchase at a price of 100.25% of the aggregate stated
liquidation amount of such Preferred Securities, the Remarketing Agent
shall determine the Reset Rate, which shall be the rate per annum
(rounded to the nearest one-thousandth (0.001) of one percent per
annum) sufficient to cause the then current aggregate market value of
the Preferred Securities to be at least equal to 100.25% of the
aggregate stated liquidation amount of such Preferred Securities, that
the Remarketing Agent determines, in its sole judgment, to be the
lowest rate per annum that will enable it to remarket all of the
Preferred Securities tendered or deemed tendered for Remarketing.
(g) If none of the Holders of the Preferred Securities or the
holders of the PEPS Units elect to have Preferred Securities remarketed
in the Remarketing, the Reset Rate shall be the rate determined by the
Remarketing Agent, in its sole reasonable discretion, as the rate that
would have been established had a Remarketing been held on the
Remarketing Date.
(h) If, by 4:00 P.M., New York City time, on the Remarketing
Date, the Remarketing Agent is unable to remarket all of the Preferred
Securities tendered or deemed tendered for purchase, a failed
Remarketing ("Failed Remarketing") shall be deemed to have occurred and
the Remarketing Agent shall so advise by telephone the Depositary, the
Property Trustee, the Trust and the Sponsor. In the event of a Failed
Remarketing, the Reset Rate shall equal the Two-Year Benchmark Treasury
plus the Applicable Margin.
(i) By approximately 4:30 P.M., New York City time, on the
Remarketing Date, the Remarketing Agent shall advise, by telephone (i)
the Depositary, the Property Trustee, the Trust and the Sponsor of the
Reset Rate determined in the Remarketing and the number of Preferred
Securities sold in the Remarketing, (ii) each purchaser (or the
Depositary Participant thereof) of the Reset Rate and the number of
Preferred Securities such purchaser is to purchase and (iii) each
purchaser to give instructions to its Depositary Participant to pay the
purchase price on the Remarketing Settlement Date in same day funds
against delivery of the Preferred Securities purchased through the
facilities of the Depositary.
(j) In accordance with the Depositary's normal procedures, on
the Remarketing Settlement Date, the transactions described above with
respect to each Preferred Security tendered for purchase and sold in
the Remarketing shall be executed through the Depositary, and the
accounts of the respective Depositary Participants shall be debited and
credited and such Preferred Securities delivered by book-entry as
necessary to effect purchases and sales of such Preferred Securities.
The Depositary shall make payment in accordance with its normal
procedures.
(k) If any Holder of the Preferred Securities selling
Preferred Securities in the Remarketing fails to deliver such Preferred
Securities, the Depositary Participant of such selling holder and of
any other Person that was to have purchased Preferred Securities in the
Remarketing may deliver to any such other Person a number of Preferred
Securities that is less than the number of Preferred Securities that
otherwise was to be purchased by such Person. In such event, the number
of Preferred Securities to be so delivered shall be determined by such
Depositary Participant, and delivery of such lesser number of Preferred
Securities shall constitute good delivery.
48
(l) The Remarketing Agent is not obligated to purchase any
Preferred Securities that otherwise would remain unsold in the
Remarketing. Neither the Trust, any Trustee, the Sponsor nor the
Remarketing Agent shall be obligated in any case to provide funds to
make payment upon tender of the Preferred Securities for Remarketing.
(m) Under the Remarketing Agreement, the Sponsor, in its
capacity as Senior Deferrable Notes Issuer, shall be liable for, and
shall pay, any and all costs and expenses incurred in connection with
the Remarketing, and the Trust shall not have any liabilities for such
costs and expenses; provided, however, that for the performance of
its services, the Remarketing Agent will retain from the proceeds of
the Remarketing an amount equal to 0.25% of the aggregate stated
liquidation amount of all remarketed Preferred Securities.
(n) The tender and settlement procedures set in this Section
7.13, including provisions for payment by purchasers of the Preferred
Securities in the Remarketing, shall be subject to modification to the
extent required by the Depositary or if the book-entry system is no
longer available for the Preferred Securities at the time of the
Remarketing, to facilitate the tendering and remarketing of the
Preferred Securities in certificated form. In addition, the Remarketing
Agent may modify the settlement procedures set forth herein in order to
facilitate the settlement process.
ARTICLE 8: DISSOLUTION AND TERMINATION OF THE TRUST
SECTION 8.1 Dissolution and Termination of the Trust.
(a) The Trust shall dissolve upon the earliest of:
(i) the bankruptcy of the Senior Deferrable Notes
Issuer;
(ii) the filing of a certificate of dissolution or
its equivalent with respect to the Sponsor; the receipt by the
Trust of the consent of the Holders of at least a Majority in
Liquidation Amount of the Securities to dissolve the Trust and
file a certificate of cancellation with respect to the Trust;
or the revocation of the Sponsor's charter and the expiration
of 90 days after the date of revocation without a
reinstatement thereof;
(iii) the entry of a decree of judicial dissolution
of the Sponsor or the Trust;
(iv) the time when all of the Securities shall have
been called for redemption and the amounts then due shall have
been paid to the Holders of the Securities;
(v) upon the direction by the Property Trustee,
following the occurrence and continuation of a Tax Event
pursuant to which the Trust has been dissolved and all of the
Senior Deferrable Notes have been distributed to the Holders
of the Securities in exchange for all of the Securities;
(vi) at the Sponsor's sole discretion, by notice and
direction to the Property Trustee to distribute the Senior
Deferrable Notes to the Holders of the Securities in exchange
for all of the Securities; provided that the Sponsor will be
required to obtain an opinion of counsel that the distribution
of the Senior Deferrable Notes will not be taxable to the
holders of the Preferred Securities for United States federal
income tax purposes; or
49
(vii) the time when all of the Regular Trustees and
the Sponsor have consented to dissolution of the Trust,
provided such action is taken before the issuance of any
Securities.
(b) As soon as is practicable after the occurrence of an event referred
to in Section 8.1(a) and upon completion of the winding up and liquidation of
the Trust, the Regular Trustees shall terminate the Trust by executing and
filing a certificate of cancellation with the Secretary of State of the State of
Delaware.
(c) The provisions of Section 4.2 and Article 9 shall survive the
termination of the Trust.
SECTION 8.2 Liquidation Distribution Upon Dissolution of the Trust.
(a) In the event of any voluntary or involuntary liquidation,
dissolution, or winding-up of the Trust (each a "Liquidation"), the Holders of
the Securities on the date of the Liquidation shall be entitled to receive, out
of the assets of the Trust available for distribution to the Holders of the
Securities after satisfaction of the Trust's liabilities to creditors, if any,
cash or other immediately available funds in an amount equal to the aggregate of
the stated liquidation amount of $25 per Security plus accumulated and unpaid
Distributions thereon to the date of payment (such amount being the "Liquidation
Distribution"); provided if the Liquidation occurs prior to the Purchase
Contract Settlement Date, the Redemption Price payable to the Collateral Agent,
in liquidation of the Holders' interests in the Preferred Securities, will be
distributed to the Collateral Agent, which in turn will apply an amount equal to
the Redemption Amount of such Redemption Price to purchase the Treasury
Portfolio on behalf of the Holders of the Securities and remit the remaining
portion, if any, of such Redemption Price to the Purchase Contract Agent for
payment to the Holders. If, however, Senior Deferrable Notes are to be
distributed in connection with such Liquidation, then the Holders of the
Securities shall receive on a Pro Rata basis Senior Deferrable Notes in an
aggregate principal amount equal to the aggregate stated liquidation amount of,
with an interest rate identical to the distribution rate of, and accrued and
unpaid interest equal to accumulated and unpaid Distributions on, such
Securities in exchange for such Securities; provided if the Liquidation occurs
prior to the Purchase Contract Settlement Date, the Senior Deferrable Notes
receivable by the Holders shall be transferred to the Collateral Account.
(b) If, upon any such Liquidation, the Liquidation Distribution can be
paid only in part because the Trust has insufficient assets available to pay the
aggregate Liquidation Distribution in full, then the amounts payable directly by
the Trust on the Securities shall be paid on a Pro Rata basis. The Holders of
the Common Securities shall be entitled to receive the Liquidation Distribution
Pro Rata with the Holders of the Preferred Securities, except that if an
Indenture Event of Default has occurred and is continuing, then the Preferred
Securities shall have a preference over the Common Securities with regard to the
Liquidation Distribution.
(c) After the date fixed for any distribution of Senior Deferrable
Notes upon dissolution of the Trust, (i) the Securities no longer shall be
deemed to be outstanding and (ii) the Certificates shall be deemed to represent
the Senior Deferrable Notes in a principal amount equal to the stated
liquidation amount of the Securities, bearing accrued and unpaid interest in an
50
amount equal to the accumulated and unpaid Distributions on the Securities,
until such Certificates are presented to the Regular Trustees or agent for
transfer or reissuance.
ARTICLE 9: LIMITATION OF LIABILITY OF
HOLDERS OF THE SECURITIES, THE DELAWARE TRUSTEE AND OTHERS
SECTION 9.1 Liability.
(a) Except as expressly set forth in this Declaration, the Guarantee
and the terms of the Securities, the Sponsor:
(i) shall not be personally liable for the return of any
portion of the capital contributions (or any return thereon) of the
Holders of the Securities that will be made solely from assets of the
Trust; and
(ii) shall not be required to pay to the Trust or to any
Holder of the Securities any deficit, upon dissolution of the Trust or
otherwise.
(b) Pursuant to Section 3803(a) of the Business Trust Act, the Holder
of the Common Securities shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware; provided that the
Holders of the Common Securities shall be liable for all of the debts and
obligations of the Trust (other than with respect to the Securities) to the
extent such debts and obligations are not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the Holder
of the Preferred Securities shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
SECTION 9.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Trust or to any Covered Person for any loss,
damage or claim incurred by reason of any act or omission performed or omitted
by such Indemnified Person in good faith on behalf of the Trust and in a manner
that such Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Declaration or by law,
except that an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's gross negligence (or, in
the case of the Property Trustee, negligence) or willful misconduct with respect
to such acts or omissions.
(b) Each Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions, reports
or statements presented to the Trust by any Person as to matters such
Indemnified Person reasonably believes to be within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses or any other facts pertinent to the
51
existence and amount of assets from which distributions to Holders of the
Securities might properly be paid.
SECTION 9.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions of
this Declaration, to the extent that they restrict the duties and liabilities of
an Indemnified Person otherwise existing at law or in equity (other than the
duties imposed on the Property Trustee under the Trust Indenture Act), are
agreed by the parties hereto to replace such other duties and liabilities of
such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between a
Covered Person and an Indemnified Person; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person
shall act in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such
action or provide such terms, considering in each case the relative interest
of each party (including its own interest) to such conflict, agreement,
transaction or situation and the benefits and burdens relating to such
interests, any customary or accepted industry practices and any applicable
generally accepted accounting practices or principles. In the absence of bad
faith by the Indemnified Person, the resolution, action or term so made,
taken or provided by the Indemnified Person shall not constitute a breach of
this Declaration or any other agreement contemplated herein or of any duty or
obligation of the Indemnified Person at law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is permitted or
required to make a decision:
(i) in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such interests and
factors as it desires, including its own interests, and shall have no
duty or obligation to give any consideration to any interest of or
factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express standard and shall
not be subject to any other or different standard imposed by this
Declaration or by applicable law.
SECTION 9.4 Indemnification.
(a) (i) The Senior Deferrable Notes Issuer shall indemnify, to
the full extent permitted by law, any Senior Deferrable Notes Issuer
Indemnified Person who was
52
or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or
in the right of the Trust), by reason of the fact that he or she is or
was a Senior Deferrable Notes Issuer Indemnified Person against
expenses (including attorney fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he or she acted in good faith
and in a manner that he or she reasonably believed to be in or not
opposed to the best interests of the Trust and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his
or her conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction or upon a plea of
nolo contendere or its equivalent shall not, of itself, create a
presumption that the Senior Deferrable Notes Issuer Indemnified Person
did not act in good faith and in a manner that he or she reasonably
believed to be in or not opposed to the best interests of the Trust
and, with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
(ii) The Senior Deferrable Notes Issuer shall indemnify, to
the full extent permitted by law, any Senior Deferrable Notes Issuer
Indemnified Person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in
the right of the Trust to procure a judgment in its favor by reason of
the fact that he or she is or was a Senior Deferrable Notes Issuer
Indemnified Person against expenses (including attorneys' fees)
actually and reasonably incurred by him or her in connection with the
defense or settlement of such action or suit if he or she acted in good
faith and in a manner he or she reasonably believed to be in or not
opposed to the best interests of the Trust and except that no such
indemnification shall be made in respect of any claim, issue or matter
as to which such Senior Deferrable Notes Issuer Indemnified Person was
adjudged to be liable to the Trust, unless and only to the extent that
the Court of Chancery of Delaware or the court in which such action or
suit was brought determines upon application that, despite the
adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for
such expenses that such Court of Chancery or such other court shall
deem proper.
(iii) Any indemnification under paragraphs (i) and (ii) of
this Section 9.4(a) (unless ordered by a court) shall be made by the
Senior Deferrable Notes Issuer only as authorized in the specific case
upon a determination that indemnification of the Senior Deferrable
Notes Issuer Indemnified Person is proper in the circumstances because
he or she has met the applicable standard of conduct set forth in
paragraphs (i) and (ii). Such determination shall be made (1) by a
majority vote of a quorum of the Regular Trustees who were not parties
to such action, suit or proceeding, (2) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of disinterested
Regular Trustees so directs, by independent legal counsel in a written
opinion, or (3) by the Holders of the Common Securities.
(iv) Expenses (including attorneys' fees) incurred by a Senior
Deferrable Notes Issuer Indemnified Person in defending a civil,
criminal, administrative or investigative action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section 9.4(a) shall be
paid by the Senior Deferrable Notes Issuer in advance of the final
53
disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such Senior Deferrable Notes Issuer
Indemnified Person to repay such amount if it shall ultimately be
determined that he or she is not entitled to be indemnified by the
Senior Deferrable Notes Issuer as authorized in this Section 9.4(a).
Notwithstanding the foregoing, no advance shall be made by the Senior
Deferrable Notes Issuer if a determination is reasonably and promptly
made (i) by a majority vote of a quorum of disinterested Regular
Trustees, (ii) if such a quorum is not obtainable, or, even if
obtainable, if a quorum of disinterested Regular Trustees so directs,
by independent legal counsel in a written opinion or (iii) the Holders
of the Common Securities, that, based upon the facts known to the
Regular Trustees, counsel or the Holders of the Common Securities at
the time such determination is made, such Senior Deferrable Notes
Issuer Indemnified Person acted in bad faith or in a manner that such
Person did not believe to be in or not opposed to the best interests of
the Trust, or, with respect to any criminal proceeding, that such
Senior Deferrable Notes Issuer Indemnified Person believed or had
reasonable cause to believe his or her conduct was unlawful. In no
event shall any advance be made in instances where the Regular
Trustees, independent legal counsel or the Holders of the Common
Securities reasonably determine that such Person deliberately breached
his or her duty to the Trust or to the Holders of the Securities.
(v) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other paragraphs of this Section 9.4(a)
shall not be deemed exclusive of any other rights to which those
seeking indemnification and advancement of expenses may be entitled
under any agreement, vote of stockholders or disinterested directors of
the Senior Deferrable Notes Issuer or the Holders of the Preferred
Securities or otherwise, both as to action in an official capacity and
as to action in another capacity while holding such office. All rights
to indemnification under this Section 9.4(a) shall be deemed to be
provided by a contract between the Senior Deferrable Notes Issuer and
each Senior Deferrable Notes Issuer Indemnified Person who serves in
such capacity at any time while this Section 9.4(a) is in effect. Any
repeal or modification of this Section 9.4(a) shall not affect any
rights or obligations then existing.
(vi) The Senior Deferrable Notes Issuer or the Trust may
purchase and maintain insurance on behalf of any Person who is or was a
Senior Deferrable Notes Issuer Indemnified Person against any liability
asserted against him or her and incurred by him or her in any such
capacity, or arising out of his or her status as such, whether or not
the Senior Deferrable Notes Issuer would have the power to indemnify
him or her against such liability under the provisions of this Section
9.4(a).
(vii) For purposes of this Section 9.4(a), references to "the
Trust" shall include, in addition to the resulting or surviving entity,
any constituent entity (including any constituent of a constituent)
absorbed in a consolidation or merger, so that any Person who is or was
a director, trustee, officer or employee of such constituent entity, or
is or was serving at the request of such constituent entity as a
director, trustee, officer, employee or agent of another entity, shall
stand in the same position under the provisions of this Section 9.4(a)
with respect to the resulting or surviving entity as he or she would
have had with respect to such constituent entity if its separate
existence had continued.
54
(viii) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Section 9.4(a) shall
continue, unless otherwise provided when authorized or ratified, as to
a Person who has ceased to be a Senior Deferrable Notes Issuer
Indemnified Person and shall inure to the benefit of the heirs,
executors and administrators of such a Person. The provisions of
this Section 9.4(a) shall survive the resignation or removal of the
Delaware Trustee or the Property Trustee or the termination of this
Declaration or the resignation or removal of the Property Trustee or
Delaware Trustee, as the case may be.
(b) The Senior Deferrable Notes Issuer agrees to indemnify, to the
fullest extent permitted by law, the (i) Property Trustee, (ii) the Delaware
Trustee, (iii) any Affiliate of the Property Trustee or the Delaware Trustee and
(iv) any officers, directors, shareholders, members, partners, employees,
representatives, custodians, nominees or agents of the Property Trustee and the
Delaware Trustee (each of the Persons in (i) through (iv) being referred to as a
"Fiduciary Indemnified Person") for, and to hold each Fiduciary Indemnified
Person harmless against, any loss, liability or expense incurred without gross
negligence (or, in the case of the Property Trustee, negligence) or bad faith on
its part, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against or investigating
any claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder. The obligation to indemnify as set forth in this
Section 9.4(b) shall survive the satisfaction and discharge of this Declaration.
SECTION 9.5 Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee and the
Property Trustee (subject to Section 6.3(c)) may engage in or possess an
interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the activities of the
Trust, and the Trust and the Holders of the Securities shall have no rights
by virtue of this Declaration in and to such independent ventures or the
income or profits derived therefrom, and the pursuit of any such venture,
even if competitive with the activities of the Trust, shall not be deemed
wrongful or improper. Each Covered Person, the Sponsor, the Delaware Trustee
and the Property Trustee shall not be obligated to present any particular
investment or other opportunity to the Trust even if such opportunity is of a
character that, if presented to the Trust, could be taken by the Trust, and
any Covered Person, the Sponsor, the Delaware Trustee and the Property
Trustee shall have the right to take for its own account (individually or as
a partner or fiduciary) or to recommend to others any such particular
investment or other opportunity. Any Covered Person, the Delaware Trustee and
the Property Trustee may engage or be interested in any financial or other
transaction with the Sponsor or any Affiliate of the Sponsor, or may act as
depositary for, trustee or agent for, or act on any committee or body of
holders of, securities or other obligations of the Sponsor or its Affiliates.
ARTICLE 10: ACCOUNTING
SECTION 10.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the
calendar year, or such other year as is required by the Code.
55
SECTION 10.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the Regular
Trustees shall keep, or shall cause to be kept, full books of account, records
and supporting documents, which shall reflect in reasonable detail each
transaction of the Trust. The books of account shall be maintained on the
accrual method of accounting, in accordance with generally accepted accounting
principles, consistently applied. The Trust shall use the accrual method of
accounting for United States federal income tax purposes. The books of account
and the records of the Trust shall be examined by and reported upon as of the
end of each Fiscal Year of the Trust by a firm of independent certified public
accountants selected by the Regular Trustees.
(b) The Regular Trustees shall cause to be prepared and delivered to
each Holder of Securities, within 90 days after the end of each Fiscal Year of
the Trust, annual financial statements of the Trust, including a balance sheet
of the Trust as of the end of such Fiscal Year, and the related statements of
income or loss.
(c) The Regular Trustees shall cause to be duly prepared and delivered
to each Holder of Securities an annual United States federal income tax
information statement, required by the Code, containing such information with
regard to the Securities held by each Holder as is required by the Code and the
Treasury Regulations. Notwithstanding any right under the Code to deliver any
such statement at a later date, the Regular Trustees shall endeavor to deliver
all such statements within 30 days after the end of each Fiscal Year of the
Trust.
(d) The Regular Trustees shall cause to be duly prepared and filed with
the appropriate taxing authority an annual United States federal income tax
return, on Form 1041 or such other form required by United States federal income
tax law, and any other annual income tax returns required to be filed on behalf
of the Trust with any state or local taxing authority.
SECTION 10.3 Banking.
The Trust shall maintain one or more bank accounts in the name and
for the sole benefit of the Trust; provided that all payments of funds in
respect of the Senior Deferrable Notes held by the Property Trustee shall be
made directly to the Property Account and no other funds of the Trust shall
be deposited in the Property Account. The sole signatories for such accounts
shall be designated by the Regular Trustees; provided that the Property
Trustee shall designate the signatories for the Property Account.
SECTION 10.4 Withholding.
The Trust and the Regular Trustees shall comply with all
withholding requirements under United States federal, state and local law. The
Regular Trustees shall request, and the Holders of the Securities shall provide
to the Trust, such forms or certificates as are necessary to establish an
exemption from withholding with respect to each Holder of Securities and any
representations and forms as shall reasonably be requested by the Regular
Trustees to assist them in determining the extent of, and in fulfilling, the
Trust's withholding obligations. The Regular Trustees shall file required form
with applicable jurisdictions and,
56
unless an exemption from withholding is properly established by a Holder of
Securities, shall remit amounts withheld with respect to such Holder to
applicable jurisdictions. To the extent that the Trust is required to withhold
and pay over any amounts to any authority with respect to distributions or
allocations to any Holder of Securities, the amount withheld shall be deemed to
be a distribution in the amount of the withholding to such Holder. In the event
of any claimed over withholding, a Holder shall be limited to an action against
the applicable jurisdiction. If the amount required to be withheld was not
withheld from actual Distributions made, the Trust may reduce subsequent
Distributions by the amount of such withholding.
ARTICLE 11: AMENDMENTS AND MEETINGS
SECTION 11.1 Amendments.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may be amended only by a
written instrument approved and executed by the Sponsor and (i) the Regular
Trustees (or, if there are more than two Regular Trustees, a majority of the
Regular Trustees) and (ii) the Property Trustee (if the amendment affects the
rights, powers, duties, obligations or immunities of the Property Trustee) and
(iii) by the Delaware Trustee (if the amendment affects the rights, powers,
duties, obligations or immunities of the Delaware Trustee).
(b) No amendment shall be made, and any such purported amendment shall
be void and ineffective:
(i) unless, in the case of any proposed amendment, the
Property Trustee first has received an Officers' Certificate from each
of the Trust and the Sponsor that such amendment is permitted by, and
conforms to, the terms of this Declaration (including the terms of the
Securities);
(ii) unless, in the case of any proposed amendment that
affects the rights, powers, duties, obligations or immunities of the
Property Trustee, the Property Trustee first has received:
(A) an Officers' Certificate from each of the Trust
and the Sponsor that such amendment is permitted by, and
conforms to, the terms of this Declaration (including the
terms of the Securities); and
(B) an opinion of counsel (which may be counsel to
the Sponsor or the Trust) that such amendment is permitted by,
and conforms to, the terms of this Declaration (including the
terms of the Securities); and
(iii) to the extent the result of such amendment would be to
(A) cause the Trust to be classified other than as a
grantor trust for United States federal income tax purposes;
57
(B) reduce or otherwise adversely affect the powers
of the Property Trustee in contravention of the Trust
Indenture Act; or
(C) cause the Trust to be deemed to be an Investment
Company required to be registered under the Investment Company
Act.
(c) At such time after the Trust has issued any Securities
that remain outstanding, (i) any amendment that would (A) adversely
affect the powers, preferences or special rights of the Securities,
whether by way of amendment to this Declaration or otherwise or (B)
result in the dissolution, winding-up or termination of the Trust other
than pursuant to the terms of this Declaration shall not be effective
except with the approval of the Holders of at least a 66 2/3% in
Liquidation Amount of the Securities; provided that if any amendment or
proposal referred to in clause (A) above would adversely affect only
the Preferred Securities or the Common Securities, then only the
affected class will be entitled to vote on such amendment or proposal,
and such amendment or proposal shall not be effective except with the
approval of a 66 2/3% in Liquidation Amount of the class of Securities
affected thereby; and (ii) any amendment that would (X) change the
amount or timing of any distribution of the Securities or otherwise
adversely affect the amount of any distribution require to be made in
respect of the Securities as of a specified date or (Y) restrict the
right of a Holder of Securities to institute suit for the enforcement
of an such payment on or after such date shall not be effective except
with the approval of each Holder of Securities affected thereby.
(d) This Section 11.1 shall not be amended without the consent
of all of the Holders of the Securities.
(e) Article 4 shall not be amended without the consent of the
Holders of the Common Securities.
(f) The rights of the Holders of the Common Securities under
Articles to increase or decrease the number of, and appoint and remove,
Trustees shall not be amended without the consent of the Holders of the
Common Securities.
(g) Notwithstanding Section 11.1(c), this Declaration may be
amended without the consent of the Holders of the Securities, provided
that such amendment does not have a material adverse effect on the
rights, preferences or privileges of the Holders of the Securities:
(i) to cure any ambiguity;
(ii) to correct or supplement any provision in this
Declaration that may be defective or inconsistent with any
other provision of this Declaration;
(iii) to add to the covenants, restrictions or
obligations of the Sponsor;
(iv) to conform to any change in Rule 3a-5 or written
change in interpretation or application of Rule 3a-5 by any
legislative body, court, government agency or regulatory
authority;
58
(v) to modify, eliminate and add to any provision of
this Declaration to ensure that the Trust will be classified
as a grantor trust for United States federal income tax
purposes at all times that any Securities are outstanding or
to ensure that the Trust will not be required to register as
an Investment Company under the Investment Company Act;
provided that such modification, elimination or addition would
not adversely affect in any material respect the rights,
privileges or preferences of any Holder of Securities; or
(vi) to facilitate the tendering, remarketing and
settlement of the Preferred Securities as contemplated by
Section 7.13(n).
SECTION 11.2 Meetings of the Holders of the Securities; Action
by Written Consent.
(a) Meetings of the Holders of any class of Securities may be
called at any time by the Regular Trustees (or as provided in the terms
of the Securities) to consider and act on any matter on which Holders
of such class of Securities are entitled to act under the terms of this
Declaration or the rules of any stock exchange on which the Preferred
Securities are listed or admitted for trading. The Regular Trustees
shall call a meeting of the Holders of such class if directed to do so
by the Holders of at least 10% in Liquidation Amount of such class of
Securities. Such direction shall be given by delivering to the Regular
Trustees a writing stating that the signing Holders of the Securities
wish to call a meeting and indicating the general or-specific purpose
for which the meeting is to be called. The Holder or Holders of the
Securities calling a meeting shall specify in writing the Certificates
held by such Holder or Holders, and only those Securities specified
shall be counted for purposes of determining whether the required
percentage set forth in the second sentence of this paragraph has been
met.
(b) Except to the extent otherwise provided in the terms of
the Securities, the following provisions shall apply to meetings of the
Holders of the Securities:
(i) Notice of any such meeting shall be given to all
the Holders of the Securities having a right to vote thereat
at least seven days and not more than 60 days before the date
of such meeting. Whenever a vote, consent or approval of the
Holders of the Securities is permitted or required under this
Declaration or the rules of any stock exchange on which the
Preferred Securities are listed or admitted for trading, such
vote, consent or approval may be given at a meeting of the
Holders of the Securities. Any action that may be taken at a
meeting of the Holders of the Securities may be taken without
a meeting and without prior notice if a consent in writing
setting forth the action so taken is signed by the Holders of
the Securities owning not less than the minimum amount of
Securities in liquidation amount that would be necessary to
authorize or take such action at a meeting at which all
Holders of the Securities having a right to vote thereon were
present and voting. Prompt notice of the taking of action
without a meeting shall be given to the Holders of the
Securities entitled to vote who have not consented in writing.
The Regular Trustees may specify that any written ballot
submitted to the Holders of the Securities for the purpose of
taking any action without a meeting shall be returned to the
Trust within the time specified by the Regular Trustees.
(ii) Each Holder of the Securities may authorize any
Person to act for it by proxy on any or all matters in which
such Holder is entitled to participate, including
59
waiving notice of any meeting, or voting or participating at a
meeting. No proxy shall be valid after the expiration of 11
months from the date thereof unless otherwise provided in the
proxy. Every proxy shall be revocable at the pleasure of the
Holder of Securities executing such proxy. Except as otherwise
provided herein, all matters relating to the giving, voting or
validity of proxies shall be governed by the General
Corporation Law of the State of Delaware relating to proxies,
and judicial interpretations thereunder, as if the Trust were
a Delaware corporation and the Holders of the Securities were
stockholders of a Delaware corporation.
(iii) Each meeting of the Holders of the Securities
shall be conducted by the Regular Trustees or by such other
Person that the Regular Trustees may designate.
(iv) Unless the Business Trust Act, this Declaration,
the Trust Indenture Act or the listing rules of any stock
exchange on which the Preferred Securities are then listed for
trading otherwise provides, the Regular Trustees, in their
sole discretion, shall establish all other provisions relating
to meetings of Holders of the Securities, including notice of
the time, place or purpose of any meeting at which any matter
is to be voted on by any Holders of the Securities, waiver of
any such notice, action by consent without a meeting without
prior notice, the establishment of a record date, quorum
requirements, voting in person or by proxy or any other matter
with respect to the exercise of any such right to vote.
ARTICLE 12: REPRESENTATIONS OF THE PROPERTY TRUSTEE
AND THE DELAWARE TRUSTEE
SECTION 12.1 Representations and Warranties of the Property
Trustee.
The initial Property Trustee represents and warrants to the
Trust and to the Sponsor at the date of this Declaration, and each
Successor Property Trustee represents and warrants to the Trust and the
Sponsor at the time of such Successor Property Trustee's acceptance of
its appointment as Property Trustee, that:
(a) the Property Trustee is a corporation duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization, with trust power and
authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Declaration;
(b) the Property Trustee satisfies the requirements set forth
in Section 6.3(a);
(c) the execution, delivery and performance by the Property
Trustee of this Declaration have been duly authorized by all necessary
corporate action on the part of the Property Trustee; this Declaration
has been duly executed and delivered by the Property Trustee, and it
constitutes a legal, valid and binding obligation of the Property
Trustee, enforceable against it in accordance with its terms, subject
to applicable bankruptcy, reorganization, moratorium, insolvency and
other similar laws affecting creditors' rights generally and to general
principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding
in equity or at law);
60
(d) the execution, delivery and performance of this
Declaration by the Property Trustee do not conflict with, nor
constitute a breach of, the articles of association or incorporation,
as the case may be, or the by-laws (or other similar organizational
documents) of the Property Trustee; and
(e) no consent, approval or authorization of, or registration
with or notice to, any state or federal banking authority is required
for the execution delivery or performance by the Property Trustee of
this Declaration.
SECTION 12.2 Representations and Warranties of the Delaware
Trustee.
The initial Delaware Trustee represents and warrants to the
Trust and to the Sponsor at the date of this Declaration, and each
Successor Delaware Trustee represents and warrants to the Trust and the
Sponsor at the time of such Successor Delaware Trustee's acceptance of
its appointment as Delaware Trustee, that:
(a) the Delaware Trustee satisfies the requirements set forth
in Section 6.2 and has the power and authority to execute and deliver,
and to carry out and perform its obligations under the terms of, this
Declaration and, if it is not a natural person, is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation or organization;
(b) the Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and this Declaration; and
this Declaration constitutes a legal, valid and binding obligation of
the Delaware Trustee under Delaware law, enforceable against it in
accordance with its terms subject to applicable bankruptcy,
reorganization, moratorium, insolvency and other similar laws affecting
creditors' rights generally and to general principles of equity and the
discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law) and
(c) no consent, approval or authorization of, or registration
with or notice to, any state or federal banking authority is required
for the execution, delivery or performance by the Delaware Trustee of
this Declaration.
ARTICLE 13: MISCELLANEOUS
SECTION 13.1 Notices.
All notices provided for in this Declaration shall be in
writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by registered or certified mail, as
follows:
(a) if given to the Trust, in care of the Regular Trustees at
the Trust's mailing address set forth below (or such other address as
the Trust may give notice of to the Property Trustee, the Delaware
Trustee and the Holders of the Securities):
c/o UtiliCorp United Inc.
20 West Ninth Street
61
Kansas City, Missouri 64105
Attention: Dale J. Wolf
Telephone No. __________
Fax No: ________________
(b) if given to the Delaware Trustee, at the mailing address
set forth below (or such other address as the Delaware Trustee may give
notice of to the Regular Trustees, the Property Trustee and the Holders
of the Securities):
Bank One Delaware, Inc.
201 North Walnut Street
Wilmington, Delaware 19801
Attention: Corporate Trust Administration
Telephone No. __________
Fax No: ________________
(c) if given to the Property Trustee, at its Corporate Trust
Office (telephone no. _____________ and fax no. (312) 407-1708) (or
such other address as the Property Trustee may give notice of to the
Regular Trustees, the Delaware Trustee and the Holders of the
Securities);
(d) if given to the Holders of the Common Securities, at the
mailing address of the Sponsor set forth below (or such other address
as the Holders of the Common Securities may give notice of to the
Property Trustee, the Delaware Trustee and the Trust):
c/o UtiliCorp United Inc.
20 West Ninth Street
Kansas City, Missouri 64105
Attention: Dale J. Wolf
Telephone No. __________
Fax No: ________________
(e) if given to any Holder of Preferred Securities, at such
Holder's address as set forth in the register of the Trust.
All such notices shall be deemed to have been given when received in person,
telecopied with receipt confirmed or mailed by first class mail, postage
prepaid, except that if a notice or other document is refused delivery or cannot
be delivered because of a changed address of which no notice was given, such
notice or other document shall be deemed to have been delivered on the date of
such refusal or inability to deliver.
SECTION 13.2 Governing Law.
This Declaration and the rights of the parties hereunder shall
be governed by and interpreted in accordance with the laws of the State
of Delaware, without regard to principles of conflicts of laws.
62
SECTION 13.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust be
classified for United States federal income tax purposes as a grantor
trust. The provisions of this Declaration shall be interpreted in a
manner consistent with such classification.
SECTION 13.4 Headings. The headings contained in this
Declaration are inserted for convenience of reference only and do not
affect the interpretation of this Declaration or any provision hereof.
SECTION 13.5 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is
named or referred to, the successors and assigns of such party shall be
deemed to be included, and all covenants and agreements in this
Declaration by the Sponsor and the Trustee shall bind and inure to the
benefit of their respective successors and assigns, whether so
expressed.
SECTION 13.6 Partial Enforceability.
If any provision of this Declaration or the application of
such provision to any Person or circumstance is held invalid, the
remainder of this Declaration, or the application of such provision to
persons or circumstances other than those to which it is held invalid,
shall not be affected thereby.
SECTION 13.7 Counterparts.
This Declaration may contain more than one counterpart of the
signature page, and this Declaration may be executed by the affixing of
the signature of each of the Trustees to one of such counterpart
signature pages. All such counterpart signature pages shall be read as
though one, and they shall have the same force and effect as though all
of the signers had signed a single signature page.
IN WITNESS WHEREOF, the undersigned have caused these presents
to be executed as of the day and year first above written.
UTILICORP UNITED INC.,
as Sponsor, Senior Deferrable Notes Issuer and
Common Securities Holder
By:---------------------------------------
Dale J. Wolf, Vice President-Finance,
Secretary and Treasurer
BANK ONE TRUST COMPANY, NA
as Property Trustee
63
By:----------------------------------
Name:--------------------------------
Title:-------------------------------
BANK ONE DELAWARE, INC.
as Delaware Trustee
By:----------------------------------
Name:
Title:
-------------------------------------
Dale J. Wolf, as Regular Trustee
-------------------------------------
Ellen E. Fairchild, as Regular Trustee
--------------------------------------
Kenneth C. Jones, as Regular Trustee
64
EXHIBIT A
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL SECURITY, INSERT THE
FOLLOWING: This Preferred Security is a Global Security within the meaning of
the Amended and Restated Declaration of UCU CAPITAL TRUST I hereinafter referred
to and is registered in the name of The Depository Trust Company, a New York
corporation (the "Depositary"), or a nominee of the Depositary. This Preferred
Security is exchangeable for Preferred Securities registered in the name of a
person other than the Depositary or its nominee only in the limited
circumstances described in the Declaration, and no transfer of this Preferred
Security (other than a transfer of this Preferred Security as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary) may be registered, except
in limited circumstances.
Unless this Preferred Security Certificate is presented by an
authorized representative of the Depositary to the issuer or its agent for
registration of transfer, exchange or payment, and any Preferred Security
Certificate issued is registered in the name of Cede & Co. or such other name as
registered by an authorized representative of the Depositary (and any payment
hereon is made to CEDE & CO. or to such other entity as is requested by an
authorized representative of the Depositary), and except as otherwise provided
in the Amended and Restated Declaration of UCU Capital Trust I dated September
_____, 1999, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL, since the registered owner hereof, CEDE & CO., has
an interest herein.]
Certificate No.-------------- Number of Preferred Securities:------
CUSIP No.--------------------
Certificate Evidencing Preferred Securities
of
UCU Capital Trust I
Preferred Securities
(liquidation amount $25 per Preferred Security)
UCU Capital Trust I, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that CEDE & CO. (the
"Holder") is the registered owner of _________ preferred securities of the Trust
representing undivided beneficial interests in the assets of the Trust
designated the Preferred Securities (liquidation amount $25 per Preferred
Security) (the "Preferred Securities"). The Preferred Securities are
transferable on the register of the Trust, in person or by a duly authorized
attorney, upon surrender of this certificate duly endorsed and in proper form
for transfer as provided in the Declaration (as defined below). The designation
rights, privileges, restrictions, preferences and other terms and provisions of
the Preferred Securities represented hereby are issued and shall in all respect
be subject to the provisions of the Amended and Restated Declaration of Trust of
the Trust, dated as of September ___, 1999 (as the same may be amended from time
to time (the "Declaration"), among UtiliCorp United Inc., as Sponsor, Dale J.
Wolf, Ellen E. Fairchild and Kenneth C. Jones, as Regular Trustees, Bank One
Trust Company, NA, as Property Trustee, Bank One Delaware, Inc., as Delaware
Trustee,
1
and the holders from time to time, of undivided beneficial interests in
the assets of the Trust. Capitalized terms used herein but not defined shall
have the meaning given them in the Declaration. The Holder is entitled to the
benefits of the Guarantee Agreement, dated as of September _____, 1999, as the
same may be amended from time to time, of UtiliCorp United Inc., in respect of
the Preferred Securities. The Sponsor will provide a copy of the Declaration,
the Guarantee and the Indenture to a Holder without charge upon written request
to the Sponsor at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the terms of the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal income tax
purposes, the Senior Deferrable Notes as indebtedness of the Sponsor and the
Preferred Securities as evidence of undivided indirect beneficial ownership
interests in the Senior Deferrable Notes.
IN WITNESS WHEREOF, the Trust has executed this certificate
this --------------- day of ---------------, 1999.
UCU CAPITAL TRUST I
------------------------------
By:---------------------------
Regular Trustee
This is one of the Securities referred to in the within-mentioned
Declaration.
BANK ONE TRUST COMPANY, NA
------------------------------
By:---------------------------
Title:------------------------
2
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS PROVIDED IN
THE DECLARATION (AS DEFINED BELOW)
Certificate No.______ Number of Common Securities: _______
Certificate Evidencing Common Securities
of
UCU Capital Trust I
Common Securities
(liquidation amount $25 per Common Security)
UCU Capital Trust I, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that
_________________________ (the "Holder") is the registered owner of
_________________ common securities of the Trust representing an undivided
beneficial interest in the assets of the Trust designated the Common Securities
(liquidation amount $25 per Common Security) (the "Common Securities"). Except
as provided in the Declaration (as defined below), the Common Securities are not
transferable, and any attempted transfer thereof shall be void. The designation,
rights, privileges, restrictions, preferences and other terms and provisions of
the Common Securities represented hereby are issued and shall in all respects be
subject to the provisions of the Amended and Restated Declaration of Trust of
the Trust, dated as of September ____, 1999 (as the same may be amended from
time to time, the "Declaration"), among UtiliCorp United Inc., as Sponsor, Dale
J. Wolf, Ellen E. Fairchild and Kenneth C. Jones, as Regular Trustees, Bank One
Trust Company, NA, as Property Trustee, Bank One Delaware, Inc., as Delaware
Trustee, and the holders, from time to time, of undivided beneficial ownership
interests in the assets of the Trust. The Holder is entitled to the benefits of
the Guarantee Agreement, dated as of September ___, 1999, of UtiliCorp United
Inc., as the same may be amended from time to time, in respect of the Common
Securities. The Sponsor will provide a copy of the Declaration, the Guarantee
and the Indenture to the Holder without charge upon written request to the
Sponsor at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the terms of
the Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Senior Deferrable Notes as indebtedness of the Sponsor
and the Common Securities as evidence of an undivided indirect beneficial
ownership interest in the Senior Deferrable Notes.
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IN WITNESS WHEREOF, the Trust has executed this certificate this ______
day of ______________________, 1999.
UCU CAPITAL TRUST I
---------------------------------
By:------------------------------
Regular Trustee
This is one of the Securities referred to in the within-mentioned
Declaration.
BANK ONE TRUST COMPANY, NA
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By:-------------------------------
Title:----------------------------
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