FORM OF AMENDED AND RESTATED TRUST AGREEMENT
Exhibit 4.j.
FORM OF
AMENDED AND RESTATED
TRUST AGREEMENT
AMONG
GREAT PLAINS ENERGY INCORPORATED
AS DEPOSITOR,
----------------------------------------------
AS PROPERTY TRUSTEE,
AND
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AS DELAWARE TRUSTEE
DATED AS OF ____________________, 200_
----------------------------
GREAT PLAINS ENERGY CAPITAL TRUST __
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i
TABLE OF CONTENTS*
PARTIES 1
RECITALS 1
ARTICLE ONE
Defined Terms
SECTION 101 Definitions 1
ARTICLE TWO
Continuation of the Trust
SECTION 201 Name 11
SECTION 202 Office of the Delaware Trustee; ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
of Business
SECTION 203 Initial Contribution of Trust Property; 11
Organizational Expenses
SECTION 204 Issuance of the Trust Preferred Securities 11
SECTION 205 Issuance of the Trust Common Securities; 12
Subscription and Purchase of [Subordinated]
Debentures
SECTION 206 Declaration of Trust 12
SECTION 207 Authorization to Enter Into Certain 13
Transactions
SECTION 208 Assets of Trust 15
SECTION 209 Trust Property 16
ARTICLE THREE
Payment Account
SECTION 301 Payment Account 16
ARTICLE FOUR
Distribution; Redemption
SECTION 401 Distribution 16
SECTION 402 Redemption 17
SECTION 403 Subordination of Trust Common Securities 19
SECTION 404 Payment Procedures 20
SECTION 405 Tax Returns and Reports 20
SECTION 406 Payment of Taxes, Duties, Etc. of the Trust 21
SECTION 407 Payments Under Indenture or Pursuant to Direct 21
Actions
SECTION 408 Liability of the Holder of Trust Common 21
Securities
* The Table of Contents is not part of the Agreement
ii
ARTICLE FIVE
Trust Securities Certificates
SECTION 501 Initial Ownership 21
SECTION 502 The Trust Securities Certificates 21
SECTION 503 Execution and Delivery of Trust Securities 22
Certificates
SECTION 504 Global Trust Preferred Securities 22
SECTION 505 Registration of Transfer and Exchange 24
Generally; Certain Transfers and Exchanges;
Trust Preferred Securities Certificates
SECTION 506 Mutilated, Destroyed, Lost or Stolen Trust 25
Securities Certificates
SECTION 507 Persons Deemed Holders 26
SECTION 508 Access to List of Holders' Names and Addresses 26
SECTION 509 Maintenance of Office or Agency 26
SECTION 510 Appointment of Paying Agent 26
SECTION 511 Ownership of Trust Common Securities by 27
Depositor
SECTION 512 Notices to Depositary 27
SECTION 513 Rights of Holders 28
ARTICLE SIX
Acts of Holders; Meetings; Voting
SECTION 601 Limitations on Holder's Voting Rights 30
SECTION 602 Notice of Meetings 30
SECTION 603 Meetings of Holders 31
SECTION 604 Attendance at Meetings; Determination of Voting 32
Rights; Conduct and Adjournment of Meetings
SECTION 605 Counting Votes and Recording Action of Meetings 33
SECTION 606 Holder Action by Written Consent 33
SECTION 607 Record Date for Voting and Other Purposes 33
SECTION 608 Acts of Holders 34
SECTION 609 Inspection of Records 35
ARTICLE SEVEN
Representations and Warranties
SECTION 701 Representations and Warranties of the Property 35
Trustee and the Delaware Trustee
SECTION 702 Representations and Warranties of Depositor 36
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ARTICLE EIGHT
The Trustees; The Administrators
SECTION 801 Certain Duties and Responsibilities 37
SECTION 802 Events of Default; Waiver 38
SECTION 803 Certain Notices 39
SECTION 804 Certain Rights of Property Trustee 39
SECTION 805 Not Responsible for Recitals or Issuance of 40
Securities
SECTION 806 May Hold Securities 40
SECTION 807 Compensation; Indemnity 40
SECTION 808 Trustees Required; Eligibility of Trustees and 41
Administrators
SECTION 809 Conflicting Interests 42
SECTION 810 Co-Trustees and Separate Trustee 42
SECTION 811 Resignation and Removal; Appointment of 43
Successor
SECTION 812 Acceptance of Appointment by Successor 45
SECTION 813 Merger, Conversion, Consolidation, or 45
Succession to Business
SECTION 814 Preferential Collection of Claims Against 45
Depositor or Trust
SECTION 815 Trustee May File Proofs of Claim 46
SECTION 816 Reports by Property Trustee 46
SECTION 817 Reports to the Property Trustee 47
SECTION 818 Evidence of Compliance with Conditions 47
Precedent
SECTION 819 Number of Trustees 47
SECTION 820 Delegation of Power 47
SECTION 821 Appointment of Administrators 47
SECTION 822 Delaware Trustee 48
ARTICLE NINE
Dissolution, Liquidation, and Merger
SECTION 901 Dissolution Upon Expiration Date 49
SECTION 902 Early Dissolution 49
SECTION 903 Termination 49
SECTION 904 Liquidation 49
SECTION 905 Mergers, Consolidations, Amalgamations or 51
Replacements of the Trust
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ARTICLE TEN
Miscellaneous Provisions
SECTION 1001 Limitations of Rights of Holders 52
SECTION 1002 Amendment 52
SECTION 1003 Separability 53
SECTION 1004 Governing Law 53
SECTION 1005 Payments Due on Non-Business Day 54
SECTION 1006 Successors 54
SECTION 1007 Headings 54
SECTION 1008 Reports, Notices and Demands 54
SECTION 1009 Agreement Not to Petition 55
SECTION 1010 Trust Indenture Act; Conflict with Trust 55
Indenture Act
SECTION 1011 Acceptance of Terms of Trust Agreement; 55
Guarantee and Indenture
EXHIBITS
EXHIBIT A Certificate of Trust 58
EXHIBIT B Certificate Evidencing Trust Common 59
Securities
EXHIBIT C Certificate Evidencing Trust Preferred 61
Securities
V
GREAT PLAINS ENERGY CAPITAL TRUST __
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the Trust Indenture Act of 1939
Trust Agreement
Section of Act Section
310 (a) (1) . . . . . . . . . . . . . . . . 808
(a) (2) . . . . . . . . . . . . . . . 808
(a) (3) . . . . . . . . . . . . . . . 810
(a) (4) . . . . . . . . . . . . . . . 207(a)(ii)
(a) (5) . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . 809, 811
(c) . . . . . . . . . . . . . . . . . Not Applicable
311 (a) . . . . . . . . . . . . . . . . . . 814
(b) . . . . . . . . . . . . . . . . . 814
(c) . . . . . . . . . . . . . . . . . Not Applicable
312 (a) . . . . . . . . . . . . . . . . . . 508
(b) . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . 508
313 (a) . . . . . . . . . . . . . . . . . . 816
(b) . . . . . . . . . . . . . . . . . 816
(c) . . . . . . . . . . . . . . . . . 816
(d) . . . . . . . . . . . . . . . . . 816
314 (a) . . . . . . . . . . . . . . . . . . 817
(a) (4) . . . . . . . . . . . . . . . 818
(b) . . . . . . . . . . . . . . . . . Not Applicable
(c) (1) . . . . . . . . . . . . . . . 818
(c) (2) . . . . . . . . . . . . . . . 818
(c) (3) . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . 818
(f) . . . . . . . . . . . . . . . . . Not Applicable
315 (a). . . . . . . . . . . . . . . . . . . 801, 804
(b) . . . . . . . . . . . . . . . . . 803
(c) . . . . . . . . . . . . . . . . . 801
(d) . . . . . . . . . . . . . . . . . 801
(e) . . . . . . . . . . . . . . . . . Not Applicable
316 (a) . . . . . . . . . . . . . . . . . . 513
(a)(1)(A) . . . . . . . . . . . . . . 513
(a)(1)(B) . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . 513
(c) . . . . . . . . . . . . . . . . . 607
317 (a)(1) . . . . . . . . . . . . . . . . . Not Applicable
(a) (2) . . . . . . . . . . . . . . . 815
(b) . . . . . . . . . . . . . . . . . 510
318 (a) . . . . . . . . . . . . . . . . . . 1010
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Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Trust Agreement.
vi
AGREEMENT
THIS AMENDED AND RESTATED TRUST AGREEMENT (this "Trust
Agreement"), dated as of _____________________, 200_, by and
among (i) Great Plains Energy Incorporated, a Missouri
corporation (including any successors or assigns, the
"Depositor"), (ii) __________________________, a New York banking
corporation, as property trustee (in such capacity, the "Property
Trustee" and, in its separate corporate capacity and not in its
capacity as Property Trustee, the "Bank"), (iii)
_________________________________, a ___________________ banking
corporation, as Delaware trustee (the "Delaware Trustee") (the
Property Trustee and the Delaware Trustee are referred to
collectively herein as the "Trustees"), and (iv) the several
Holders, as hereinafter defined.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Depositor and the Delaware Trustee have
heretofore duly declared and established a business trust
pursuant to the Delaware Business Trust Act by entering into a
certain Trust Agreement, dated as of __________________________
(the "Original Trust Agreement"), and by the execution and filing
by the Delaware Trustee with the Secretary of State of the State
of Delaware of the Certificate of Trust, filed on
______________________ (the "Certificate of Trust"), attached as
Exhibit A; and
WHEREAS, the Depositor and the Delaware Trustee desire to
amend and restate the Original Trust Agreement in its entirety as
set forth herein to provide for, among other things, (i) the
issuance of the Trust Common Securities by the Trust to the
Depositor, (ii) the issuance and sale of the Trust Preferred
Securities by the Trust pursuant to the Underwriting Agreement,
(iii) the acquisition by the Trust from the Depositor of all of
the right, title and interest in the [Subordinated] Debentures,
(iv) the appointment of the Administrators and (v) the addition
of the Property Trustee as a party to this Trust Agreement;
NOW, THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, each party, for the benefit of the other parties
and for the benefit of the Holders, hereby amends and restates
the Original Trust Agreement in its entirety and agrees,
intending to be legally bound, as follows:
ARTICLE I
DEFINED TERMS
Section 101 DEFINITIONS. For all purposes of this Trust
Agreement, except as otherwise expressly provided or unless the
context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as
well as the singular;
(b) all other terms used herein that are defined in the
Trust Indenture Act, either directly or by reference
therein, have the meanings assigned to them therein;
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(c) the words "include," "includes" and "including" shall be
deemed to be followed by the phrase "without limitation";
(d) all accounting terms used but not defined herein have
the meanings assigned to them in accordance with United
States generally accepted accounting principles as in effect
at the time of computation;
(e) unless the context otherwise requires, any reference to
an "Article" or a "Section" refers to an Article or a
Section, as the case may be, of this Trust Agreement;
(f) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Trust Agreement as a
whole and not to any particular Article, Section or other
subdivision; and
(g) all references to the date the Trust Preferred
Securities were originally issued shall refer to the date
the ______% Trust Preferred Securities were originally
issued.
"ACT" has the meaning specified in Section 608.
"ADDITIONAL AMOUNTS" means, with respect to Trust
Securities of a given Liquidation Amount and/or a given period,
the amount of Additional Interest paid by the Depositor on a Like
Amount of [Subordinated] Debentures for such period.
"ADDITIONAL INTEREST" has the meaning specified in Section
___ of the Indenture.
"ADDITIONAL SUMS" has the meaning specified in Section ___
of the Indenture.
"ADMINISTRATORS" means each Person appointed in accordance
with Section 821 solely in such Person's capacity as
Administrator of the Trust continued hereunder and not in such
Person's individual capacity, or any successor Administrator
appointed as herein provided; with the initial Administrators
being ___________________ and __________________________.
"AFFILIATE" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person. For
the purposes of this definition, "CONTROL" when used with respect
to any specified Person means the power to direct the management
and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or
otherwise; and the terms "CONTROLLING" and "CONTROLLED" have
meanings correlative to the foregoing.
"APPLICABLE PROCEDURES" means, with respect to any transfer
or transaction involving a Global Trust Preferred Security or
beneficial interest therein, the rules and procedures of the
Depositary for such Trust Preferred Security, in each case to the
extent applicable to such transaction and as in effect from time
to time.
"BANK" has the meaning specified in the preamble to this
Trust Agreement.
"BANKRUPTCY EVENT" means, with respect to any Person:
(a) the entry of a decree or order by a court having
jurisdiction in the premises and the continuance of any such
decree or order unstayed and in effect for a period of 60
consecutive days; (i) judging such Person a bankrupt or
insolvent; (ii) approving as
2
properly filed a petition seeking reorganization,
arrangement, adjudication or composition of or in respect of
such Person under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law;
(iii) appointing a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of such Person or
of any substantial part of its property; (iv) ordering the
winding-up or liquidation of its affairs; or
(b) (i) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent; (ii) the consent by it
to the institution of bankruptcy or insolvency proceedings
against it; (iii) the filing by it of a petition or answer
or consent seeking reorganization or relief under any
applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law; (iv) the consent by it
to the filing of any such petition or to the appointment of
a receiver, liquidator, assignee, trustee, sequestrator (or
similar official) of such Person or of any substantial part
of its property; (v) the making by it of an assignment for
the benefit of creditors, or the admission by it in writing
of its inability to pay its debts generally as they become
due and its willingness to be adjudicated a bankrupt; (vi)
the taking of corporate action by such Person in furtherance
of any such action.
"BANKRUPTCY LAWS" has the meaning specified in Section
1009.
"BOARD OF DIRECTORS" means either the board of directors of
the Depositor or any committee thereof duly authorized to act or
any director or directors and/or officer or officers of the
Depositor to whom that board or committee shall have duly
delegated its authority in respect of matters relating to this
Trust Agreement.
"BOARD RESOLUTION" means a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Depositor to
have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification, and
delivered to the Trustees.
"BUSINESS DAY" means a day other than (a) a Saturday or
Sunday, (b) a day on which banking institutions in the City of
New York, New York are authorized or required by law or executive
order to remain closed or (c) a day on which the Property
Trustee's Corporate Trust Office or the Delaware Trustee's
corporate trust office or the corporate trust office of the
Debenture Trustee is closed for business.
"CEDE" means Cede & Co.
"CERTIFICATE OF TRUST" has the meaning specified in the
preamble to this Trust Agreement.
"CLOSING DATE" means the Closing Time, which date is also
the date of execution and delivery of this Trust Agreement.
"CLOSING TIME" means the First Closing Date, as that term
is used throughout the Underwriting Agreement.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMISSION" means the Securities and Exchange Commission,
as from time to time constituted, created under the Exchange Act,
as amended, or, if at any time after the execution of this
instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
3
"CORPORATE TRUST OFFICE" means the principal corporate
trust office of the
Property Trustee located in the City of New York which at the
time of the execution of this Trust Agreement is located
at___________________________________________________.
"DEBENTURE EVENT OF DEFAULT" means an "Event of Default" as
defined in the Indenture.
"DEBENTURES PURCHASE AGREEMENT" means the [Subordinated]
Deferrable Interest Debentures Purchase Agreement dated as of
___________________________ between the Depositor and the Trust,
as the same may be amended from time to time.
"DEBENTURE REDEMPTION DATE" means, with respect to any
[Subordinated] Debentures to be redeemed under the Indenture, the
date fixed for redemption of such Debentures under the Indenture.
"DEBENTURE TRUSTEE" means ________________________________,
a New York
banking corporation, as trustee under the Indenture, and any
successor.
"DEFINITIVE TRUST PREFERRED SECURITIES" has the meaning
specified in Section 504(c).
"DELAWARE BUSINESS TRUST ACT" means Chapter 38 of Title 12
of the Delaware Code, 12 Del. ▇.▇▇. 3801, et seq., as it may be
amended from time to time.
"DELAWARE TRUSTEE" means the corporation identified as the
"Delaware Trustee" in the preamble to this Trust Agreement solely
in its capacity as Delaware Trustee of the Trust continued
hereunder and not in its individual capacity, or its successor in
interest in such capacity, or any successor trustee appointed as
herein provided.
"DEPOSITARY" shall mean, with respect to Global Trust
Preferred Securities, The Depository Trust Company, New York, New
York, another clearing agency, or any successor registered as a
clearing agency under the Exchange Act or other applicable
statute or regulation, which, in each case, shall be designated
by the Depositor pursuant to Section 504(b).
"DEPOSITARY PARTICIPANT" means a broker, dealer, bank,
other financial institution or other Person for whom from time to
time the Depositary effects book-entry transfers and pledges of
securities deposited with the Depositary.
"DEPOSITOR" has the meaning specified in the preamble to
this Trust Agreement.
"DIRECT ACTION" has the meaning specified in Section
513(c).
"DISTRIBUTION DATE" has the meaning specified in Section
401(a).
"DISTRIBUTIONS" means amounts payable in respect of the
Trust Securities as provided in Section 401.
"EARLY TERMINATION EVENT" has the meaning specified in
Section 902.
4
"EVENT OF DEFAULT" means any one of the following events
(whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or
governmental body):
(a) the occurrence of a Debenture Event of Default;
(b) default by the Trust in the payment of any Distribution
when it becomes due and payable, and continuation of such
default for a period of 30 days;
(c) default by the Trust in the payment of any Redemption
Price of any Trust Security when it becomes due and payable,
and continuation of such default for a period of 1 day;
(d) default in the performance, or breach, in any material
respect, of any covenant or warranty of the Trustees in this
Trust Agreement (other than a covenant or warranty a default
in the performance of which or the breach of which is dealt
with in clause (b) or (c) above) and continuation of such
default or breach for a period of 60 days after there has
been given, by registered or certified mail, to the Trustees
and the Depositor by the Holders of at least 33% in
aggregate Liquidation Amount of the Outstanding Trust
Preferred Securities, a written notice specifying such
default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder;
(e) the occurrence of any Bankruptcy Event with respect to
the Property Trustee or all or substantially all of its
property if a successor Property Trustee has not been
appointed within a period of 90 days thereof; or
(f) the occurrence of any Bankruptcy Event with
respect to the Trust.
"EXCHANGE ACT" shall mean the Securities Exchange Act of
1934, as amended, and any successor statute thereto, as amended
from time to time.
"EXPIRATION DATE" has the meaning specified in Section 901.
"GLOBAL TRUST PREFERRED SECURITIES CERTIFICATE" means a
Trust Preferred Securities Certificate evidencing ownership of Global
Trust Preferred Securities.
"GLOBAL TRUST PREFERRED SECURITY" means a Trust Preferred
Security, the ownership and transfers of which shall be made
through book entries by the Depositary as described in Section
504.
"GUARANTEE" means the Guarantee Agreement executed and
delivered by the Depositor and __________________, as trustee,
contemporaneously with the execution and delivery of this Trust
Agreement, for the benefit of the Holders of the Trust Preferred
Securities, as amended from time to time.
"HOLDER" means a Person in whose name a Trust Security or
Trust Securities is registered in the Securities Register; any
such Person shall be deemed to be a beneficial owner within the
meaning of the Delaware Business Trust Act.
5
"INDENTURE" means the Indenture, dated as of _____________,
between the Depositor and the Debenture Trustee (as amended or
supplemented from time to time) relating to the issuance of the
[Subordinated] Debentures.
"INVESTMENT COMPANY ACT" means the Investment Company Act
of 1940, as amended.
"INVESTMENT COMPANY EVENT" means the receipt by the Trust
of an Opinion of Counsel experienced in such matters to the effect
that, as a result of the occurrence of a change in law or regulation
or a written change (including any announced prospective change) in
interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory
authority, there is more than an insubstantial risk that the
Trust is or will be considered an "investment company" that is required
to be registered under the Investment Company Act, which change or
prospective change becomes effective or would become effective,
as the case may be, on or after the date of the issuance of the
Trust Preferred Securities.
"LIEN" means any lien, pledge, charge, encumbrance,
mortgage, deed of trust, adverse ownership interest,
hypothecation, assignment, security interest or preference,
priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"LIKE AMOUNT" means (a) with respect to a redemption of
Trust Securities, Trust Securities having a Liquidation Amount
equal to that portion of the principal amount of [Subordinated]
Debentures to be contemporaneously redeemed in accordance with
the Indenture, allocated to the Trust Common Securities and to
the Trust Preferred Securities pro rata based upon the relative
Liquidation Amounts of such classes and (b) with respect to a
distribution of [Subordinated] Debentures to Holders of Trust
Securities in connection with a dissolution or liquidation of the
Trust, [Subordinated] Debentures having a principal amount equal
to the Liquidation Amount of the Trust Securities of the Holder
to whom such [Subordinated] Debentures are distributed.
"LIQUIDATION AMOUNT" means the stated amount of $__________
per Trust Security.
"LIQUIDATION DATE" means the date on which [Subordinated]
Debentures are to be distributed to Holders of Trust Securities
in connection with a dissolution and liquidation of the Trust
pursuant to Section 904.
"LIQUIDATION DISTRIBUTION" has the meaning specified in
Section 904(d).
"MAJORITY IN LIQUIDATION AMOUNT OF THE TRUST PREFERRED
SECURITIES" or "MAJORITY IN LIQUIDATION AMOUNT OF THE TRUST COMMON
SECURITIES" means, except as provided by the Trust Indenture Act, Trust
Preferred Securities or Trust Common Securities, as the case may be,
representing more than 50% of the aggregate Liquidation Amount of
all then Outstanding Trust Preferred Securities or Trust Common
Securities, as the case may be.
"OFFICERS' CERTIFICATE" means a certificate signed by the
Chairman of the Board, President, any Vice President, the
Treasurer or any other duly authorized officer of the Depositor,
and delivered to the party provided herein. Any Officers'
Certificate delivered with respect to compliance with a condition
or covenant provided for in this Trust Agreement (other than
pursuant to Section 817) shall include:
6
(a) a statement that each Person signing such certificate or
opinion has read such covenant or condition and the
definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such Person,
such Person has made such examination or investigation as is
necessary to enable such Person to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of each such
Person, such condition or covenant has been complied with.
"OPINION OF COUNSEL" means a written opinion of counsel,
who may be counsel for or an employee of the Depositor or any
Affiliate of the Depositor or any Trustee.
"ORIGINAL TRUST AGREEMENT" has the meaning specified in the
preamble to this Trust Agreement.
"OUTSTANDING," when used with respect to Trust Securities,
means, as of the date of determination, all Trust Securities
theretofore authenticated and delivered under this Trust
Agreement, except:
(a) Trust Securities theretofore canceled by the Property
Trustee or delivered to the Property Trustee for
cancellation;
(b) Trust Securities for whose payment or redemption money
in the necessary amount has been theretofore deposited with
the Property Trustee or any Paying Agent for the Holders of
such Trust Preferred Securities, provided that if such Trust
Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Trust Agreement; and
(c) Trust Securities which have been paid, or in exchange
for, or in lieu of which, other Trust Securities have been
executed and delivered pursuant to Sections 504, 505 and
506, other than any such Trust Securities in respect of
which there shall have been presented to the Property
Trustee proof satisfactory to it and the Depositor that such
Trust Securities are held by a bona fide purchaser or
purchasers in whose hands such Trust Securities are valid
obligations of the Depositor;
provided, however, that in determining whether or not the Holders
of the requisite Liquidation Amount of the Trust Preferred
Securities Outstanding under this Trust Agreement have given any
request, demand, authorization, direction, notice, consent or
waiver hereunder or whether or not a quorum is present at a
meeting of Holders of Trust Securities, Trust Securities owned by
the Depositor, any Trustee, any Administrator or any other
obligor upon the Trust Securities or any Affiliate of the
Depositor or of such other obligor (unless the Depositor, such
Affiliate or such obligor owns all Trust Securities Outstanding
under this Trust Agreement determined without regard to this
proviso) shall be disregarded and deemed not to be Outstanding,
except that (i) in determining whether any Trustee or any
Administrator shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or
waiver or upon any such determination as to the presence of a quorum,
only Trust Preferred Securities that such Trustee or such Administrator,
as the case may be, knows to be so owned shall be so
7
disregarded and (ii) the foregoing shall not apply at any time
when all of the Outstanding Trust Preferred Securities are owned
by the Depositor, one or more of the Trustees, one or more of the
Administrators and/or any such Affiliate; provided, however, that
Trust Preferred Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Administrators the
pledgee's right so to act with respect to such Trust Preferred
Securities and that the pledgee is not the Depositor or any other
obligor upon the Trust Preferred Securities or any Affiliate of
the Depositor or of such other obligor.
"OWNER" means each Person who is the beneficial owner of
Global Trust Preferred Securities as reflected in the records of
the Depositary or, if a Depositary Participant is not the Owner,
then as reflected in the records of a Person maintaining an
account with such Depositary (directly or indirectly), in
accordance with the rules of such Depositary.
"PAYING AGENT" means any paying agent or co-paying agent
appointed pursuant to Section 510 and shall initially be the
Property Trustee.
"PAYMENT ACCOUNT" means a segregated non-interest-bearing
corporate trust account maintained with the Property Trustee in
its corporate trust department for the benefit of the Holders in
which all amounts paid in respect of the [Subordinated]
Debentures will be held and from which the Property Trustee,
through the Paying Agent, shall make payments to the Holders in
accordance with Sections 401 and 402.
"PERSON" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association,
joint stock company, company, limited liability company, trust,
unincorporated organization or government or any agency or
political subdivision thereof, or any other entity of whatever
nature.
"PROPERTY TRUSTEE" means the Person identified as the
"Property Trustee" in the preamble to this Trust Agreement solely
in its capacity as Property Trustee of the Trust continued
hereunder and not in its individual capacity, or its successor in
interest in such capacity, or any successor property trustee
appointed as herein provided.
"REDEMPTION DATE" means, with respect to any Trust Security
to be redeemed, the date fixed for such redemption by or pursuant
to this Trust Agreement; provided that each Debenture Redemption
Date and the stated maturity of the [Subordinated] Debentures
shall be a Redemption Date for a Like Amount of Trust Securities,
including but not limited to any date of redemption pursuant to
the occurrence of any Special Event.
"REDEMPTION PRICE" means a price equal to 100% of the
Liquidation Amount of the Trust Security to be redeemed, together
with accumulated Distributions to but excluding the date fixed
for redemption and the related amount of the premium, if any,
paid by the Depositor upon the concurrent redemption of the
[Subordinated] Debentures.
"RELEVANT TRUSTEE" has the meaning specified in Section
811.
"RESPONSIBLE OFFICER" when used with respect to the
Property Trustee means any officer assigned to the Corporate
Trust Office, including any managing director, vice president,
assistant vice president, assistant treasurer, assistant
secretary, trust officer, senior trust officer or any other
officer of the Property Trustee customarily performing functions
similar to those performed by any of the above designated
officers and having direct responsibility for the administration
of the Indenture, and also, with respect to a particular matter,
any other officer to
8
whom such matter is referred because of such officer's knowledge
of and familiarity with the particular subject.
"SECURITIES ACT" means the Securities Act of 1933, as
amended, and any successor statute thereto, in each case as
amended from time to time.
"SECURITIES REGISTER" and "SECURITIES REGISTRAR" have the
respective meanings specified in Section 505.
"SENIOR INDEBTEDNESS" has the meaning specified in the
Indenture.
"SPECIAL EVENT" means any Tax Event or Investment Company
Event.
"[SUBORDINATED] DEBENTURES" means the aggregate principal
amount of the Depositor's _______% [Subordinated] Deferrable
Interest Debentures, Series __ due ___________________, issued
pursuant to the Indenture.
"SUCCESSOR TRUST PREFERRED SECURITIES CERTIFICATE" of any
particular Trust Preferred Securities Certificate means every Trust
Preferred Securities Certificate issued after, and evidencing all
or a portion of the same beneficial interest in the Trust as that
evidenced by, such particular Trust Preferred Securities
Certificate; and, for the purposes of this definition, any Trust
Preferred Securities Certificate executed and delivered under
Section 506 in exchange for or in lieu of a mutilated, destroyed,
lost or stolen Trust Preferred Securities Certificate shall be
deemed to evidence the same beneficial interest in the Trust as
the mutilated, destroyed, lost or stolen Trust Preferred
Securities Certificate.
"SUCCESSOR TRUST PREFERRED SECURITY" has the meaning
specified in Section 905.
"TAX EVENT" means the receipt by the Trust of an Opinion of
Counsel experienced in such matters to the effect that, as a
result of any amendment to, or change (including any announced
prospective change) in, the laws (or any regulations thereunder)
of the United States or any political subdivision or taxing
authority thereof or therein, or as a result of any official or
administrative pronouncement or action or judicial decision
interpreting or applying such laws or regulations, which
amendment or change is effective or which pronouncement, action
or decision is announced on or after the date of issuance of the
Trust Preferred Securities (including, without limitation, any of
the foregoing arising with respect to, or resulting from, any
proceeding or other action commencing on or before such date),
there is more than an insubstantial risk that (i) the Trust is,
or will be within 90 days of the delivery of such Opinion of
Counsel, subject to United States Federal income tax with respect
to income received or accrued on the [Subordinated] Debentures,
(ii) interest payable by the Depositor on the [Subordinated]
Debentures is not, or within 90 days of the delivery of such
Opinion of Counsel will not be, deductible by the Depositor,
in whole or in part, for United States Federal income tax purposes,
or (iii) the Trust is, or will be within 90 days of the delivery
of such Opinion of Counsel, subject to more than a de minimis
amount of other taxes, duties or other governmental charges.
"TRUST" means Great Plains Energy Capital Trust __.
"TRUST AGREEMENT" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented
in accordance with the applicable provisions hereof, including
(i) all exhibits hereto, and (ii) for all purposes of this
Amended and Restated
9
Trust Agreement and any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this Amended and Restated Trust
Agreement and any modification, amendment or supplement,
respectively.
"TRUST COMMON SECURITIES CERTIFICATE" means a certificate
evidencing ownership of Trust Common Securities, substantially in
the form attached as Exhibit B.
"TRUST COMMON SECURITIES PURCHASE AGREEMENT" means the
Trust Common Securities Purchase Agreement dated as of
__________________ between the Trust and the Depositor, as the
same may be amended from time to time.
"TRUST COMMON SECURITY" means an undivided beneficial
interest in the assets of the Trust, having a Liquidation Amount
of $____________and having the rights provided therefor in this
Trust Agreement, including the right to receive Distributions and
a Liquidation Distribution as provided herein.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939
as in force and effect as of the date of execution of this Trust
Agreement; provided, however, that in the event the Trust
Indenture Act of 1939 is succeeded by another statute or is
amended after such date, "Trust Indenture Act" shall mean such
successor statute or the Trust Indenture Act of 1939, as so
amended, to the extent such successor statute or amendment is
applicable to this Trust Agreement or to the actions of the
Depositor or the Property Trustee under or pursuant to
this Trust Agreement.
"TRUST PREFERRED SECURITIES CERTIFICATE" means a
certificate evidencing ownership of Trust Preferred Securities,
substantially in the form attached as Exhibit C.
"TRUST PREFERRED SECURITY" means a preferred undivided
beneficial interest in the assets of the Trust, having a
Liquidation Amount of $___________and having the rights provided
therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"TRUST PROPERTY" means (a) the [Subordinated] Debentures,
(b) any cash on deposit in, or owing to, the Payment Account, (c)
all proceeds and rights in respect of the foregoing and (d) any
other property and assets for the time being held or deemed to be
held by the Property Trustee pursuant to the trusts of this Trust
Agreement.
"TRUST SECURITIES CERTIFICATE" means any one of the Trust
Common Securities Certificates or the Trust Preferred Securities
Certificates.
"TRUST SECURITY" means any one of the Trust Common
Securities or the Trust Preferred Securities.
"TRUSTEES" means, collectively, the Property Trustee and
the Delaware Trustee.
"UNDERWRITERS" has the meaning specified in the
Underwriting Agreement.
"UNDERWRITING AGREEMENT" means the Underwriting Agreement,
dated as of
_________, among the Trust, the Depositor and the Underwriters,
as the same may be amended from time to time.
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ARTICLE II
CONTINUATION OF THE TRUST
Section 201 NAME. The Trust continued hereby shall be known
as "Great Plains Energy Capital Trust __," as such name may be modified
from time to time by the Administrators following written notice to
the Holders of Trust Securities and the Trustees, in which name the
Administrators and the Trustees may engage in the transactions
contemplated hereby, make and execute contracts and other
instruments on behalf of the Trust and ▇▇▇ and be sued.
Section 202 OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE
OF BUSINESS. The address of the Delaware Trustee in the State of
Delaware is __________________________, Attention: Corporate Trustee
Administration Department, or such other address in the State of
Delaware as the Delaware Trustee may designate by written notice
to the Holders and the Depositor. The principal executive office
of the Trust is in care of Great Plains Energy Incorporated, ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Section 203 INITIAL CONTRIBUTION OF TRUST PROPERTY;
ORGANIZATIONAL EXPENSES. The Property Trustee acknowledges
receipt in trust from the Depositor in connection with this Trust
Agreement of the sum of $_____________, which constitutes the
initial Trust Property. The Depositor shall pay all
organizational expenses of the Trust as they arise or shall, upon
request of any Trustee, promptly reimburse such Trustee for any
such expenses paid by such Trustee. The Depositor shall make no
claim upon the Trust Property for the payment of such expenses.
Section 204 ISSUANCE OF THE TRUST PREFERRED SECURITIES. The
Depositor and the Trust executed and delivered the Underwriting
Agreement as of ___________, pursuant to the Original Trust
Agreement. Contemporaneously with the execution and delivery of
this Trust Agreement, an Administrator, on behalf of the Trust,
shall by manual or facsimile signature execute in accordance with
Section 503 and the Property Trustee shall authenticate in
accordance with Section 503 and deliver to the Underwriters,
Trust Preferred Securities Certificates, registered in the names
requested by the Underwriters, in an aggregate amount of
_________ Trust Preferred Securities having an aggregate
Liquidation Amount of $_________ against receipt of the aggregate
purchase price of such Trust Preferred Securities of $__________,
by the Property Trustee.
If the Underwriters exercise their option to purchase all
or any portion of an additional ____________ Trust Preferred
Securities pursuant to the terms of the Underwriting Agreement,
then an Administrator, on behalf of the Trust, shall by manual or
facsimile signature execute in accordance with Section 503 and
the Property Trustee shall authenticate in accordance with
Section 503 and deliver to the Underwriters, additional Trust
Preferred Securities Certificates, registered in the names
requested by the Underwriters, in an aggregate amount of up to
_______________ additional Trust Preferred Securities having an
aggregate Liquidation Amount of up to $________, against receipt of
the aggregate purchase price of such additional Trust Preferred
Securities of up to $________ by the Property Trustee.
The certificates of authentication to be executed by the
Property Trustee shall be substantially in the forms as set forth
on Exhibits B and C attached hereto.
Section 205 ISSUANCE OF THE TRUST COMMON SECURITIES;
SUBSCRIPTION AND PURCHASE OF [SUBORDINATED] DEBENTURES.
Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrator, on behalf of the Trust, shall by manual
11
or facsimile signature execute or cause to be executed in
accordance with Section 503 and the Property Trustee shall
authenticate in accordance with Section 503 and shall deliver to
the Depositor Trust Common Securities Certificates, registered in
the name of the Depositor, in an aggregate amount of ______
Trust Common Securities having an aggregate Liquidation Amount of
$___________ against receipt of the aggregate purchase price of
such Trust Common Securities of $_________ by the Property Trustee.
Contemporaneously therewith, an Administrator, on behalf of the
Trust, shall subscribe for and purchase from the Depositor the
[Subordinated] Debentures, registered in the name of the Property
Trustee and having an aggregate principal amount equal to $_________,
and, in satisfaction of the purchase price for such [Subordinated]
Debentures, the Property Trustee, on behalf of the Trust, shall
deliver to the Depositor the sum of $_________, (being the sum of
the amounts delivered to the Property Trustee pursuant to (i) the
second sentence of Section 204, and (ii) the first sentence of
this Section 205) and receive on behalf of the Trust such
[Subordinated] Debentures.
If the Underwriters exercise their option to purchase
additional Trust Preferred Securities pursuant to the terms of
the Underwriting Agreement, then an Administrator, on behalf of
the Trust, shall by manual or facsimile signature execute in
accordance with Section 503 and the Property Trustee shall
authenticate and deliver to the Depositor additional Trust Common
Securities Certificates, registered in the name of the Depositor,
in an aggregate amount of up to ______ additional Trust Common
Securities having an aggregate Liquidation Amount of up to $_______
against receipt of the aggregate purchase price of such additional
Trust Common Securities of up to $________ by the Property Trustee.
Contemporaneously therewith, an Administrator, on behalf of the
Trust, shall subscribe for and purchase from the Depositor the
[Subordinated] Debentures, registered in the name of the Property
Trustee and having an aggregate principal amount of up to
$_______, and, in satisfaction of the purchase price for such
[Subordinated] Debentures, the Property Trustee, on behalf of the
Trust, shall deliver to the Depositor an aggregate amount equal to the
sum of the amounts delivered to the Property Trustee pursuant to (i)
the third sentence of Section 204, and (ii) the third sentence of
this Section 205.
Section 206 DECLARATION OF TRUST. The exclusive purposes
and functions of the Trust are to (a) issue and sell Trust
Securities and use the proceeds from such sale to acquire the
[Subordinated] Debentures, and (b) engage in only those other
activities necessary, convenient or incidental thereto. The
Depositor hereby appoints the Trustees as trustees of the Trust,
to have all the rights, powers and duties to the extent set forth
herein, and the Trustees hereby accept such appointment. The
Property Trustee hereby declares that it will hold the Trust
Property in trust upon and subject to the conditions set forth
herein for the benefit of the Trust and the Holders. The
Depositor hereby appoints the Administrators, with such
Administrators having all rights, powers and duties set forth
herein with respect to accomplishing the purposes of the Trust,
and the Administrators hereby accept such appointment; provided,
however, that it is the intent of the parties hereto that such
Administrators shall not be trustees or, to the fullest extent
permitted by law, fiduciaries with respect to the Trust and this
Trust Agreement shall be construed in a manner consistent with
such intent. The Delaware Trustee shall not be entitled to
exercise any powers, nor shall the Delaware Trustee have any of
the duties and responsibilities, of the Property Trustee or the
Administrators set forth herein. The Delaware Trustee shall be
one of the trustees of the Trust for the sole and limited purpose
of fulfilling the requirements of Section 3807 of the Delaware
Business Trust Act and for taking such actions as are required to
be taken by a Delaware trustee under the Delaware Business Trust
Act.
Section 207 AUTHORIZATION TO ENTER INTO CERTAIN
TRANSACTIONS.
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(a) The Trustees and the Administrators shall conduct the
affairs of the Trust in accordance with the terms of this Trust
Agreement. Subject to the limitations set forth in paragraph (b)
of this Section and in accordance with the following provisions
(i) and (ii), the Trustees and the Administrators shall act as
follows:
(i) Each Administrator, acting jointly or
singly, shall:
(1) comply with the Underwriting Agreement regarding
the issuance and sale of the Trust Securities;
(2) assist in compliance with the Securities Act,
applicable State securities or blue sky laws, and the
Trust Indenture Act;
(3) assist in the listing of the Trust Preferred
Securities upon such securities exchange or exchanges
as shall be determined by the Depositor, with the
registration of the Trust Preferred Securities under
the Exchange Act, if required, and the preparation and
filing of all periodic and other reports and other
documents pursuant to the foregoing;
(4) execute the Trust Securities on behalf of the Trust
in accordance with this Trust Agreement;
(5) execute and deliver an application for a taxpayer
identification number for the Trust;
(6) assist in the filing with the Commission, at such
time as determined by the Depositor, any registration
statement under the Securities Act, including any
amendments thereto;
(7) unless otherwise required by the Trust Indenture
Act, execute on behalf of the Trust any documents that
the Administrators have the power to execute pursuant
to this Trust Agreement, including without limitation,
the Debentures Purchase Agreement and the Trust Common
Securities Purchase Agreement and send notices (other
than notices of default) and other information
regarding the Trust Securities and the [Subordinated]
Debentures to the Holders in accordance with
this Trust Agreement; and
(8) take any action incidental to the foregoing as
necessary or advisable to give effect to the terms of
this Trust Agreement.
(ii) The Property Trustee shall have the power and
authority to act on behalf of the Trust with respect to
the following matters:
(1) the establishment of the Payment
Account;
(2) the receipt of the [Subordinated]
Debentures;
(3) the receipt and collection of interest, principal
and any other payments made in respect of the
[Subordinated] Debentures in the Payment Account;
(4) the distribution, through the Paying Agent, of
amounts owed to the Holders in respect of the Trust
Securities;
13
(5) the exercise of all of the rights, powers and
privileges of a holder of the [Subordinated] Debentures
(subject to the terms of this Trust Agreement);
(6) the sending of notices of default and other
information regarding the Trust Securities and the
[Subordinated] Debentures to the Holders in accordance
with this Trust Agreement;
(7) the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
(8) to the extent provided in this Trust Agreement, the
winding-up of the affairs of and liquidation of the
Trust and the preparation, execution and filing of the
certificate of cancellation with the Secretary of State
of the State of ________________ ; and
(9) after an Event of Default (other than under
paragraph (b), (c), (d), or (e) of the definition of
such term if such Event of Default is by or with
respect to the Property Trustee), comply with the
provisions of this Trust Agreement and take any action
to give effect to the terms of this Trust Agreement and
protect and conserve the Trust Property for the benefit
of the Holders (without consideration of the effect of
any such action on any particular Holder);
PROVIDED, HOWEVER, that nothing in this Section
207(a)(ii) shall require the Property Trustee to take any action
that is not otherwise required in this Trust Agreement.
(iii) the Property Trustee shall have none of the duties,
liabilities, powers or the authority of the
Administrators as set forth in Section 207(a)(i).
(b) So long as this Trust Agreement remains in effect, the
Trust (or the Trustees or Administrators acting on behalf of the
Trust) shall not undertake any business, activities or
transactions except as expressly provided herein or contemplated
hereby. In particular, neither the Trustees nor the
administrators shall (i) acquire any investments or engage in any
activities not authorized by this Trust Agreement, (ii) sell,
assign, transfer, exchange, mortgage, pledge, set-off or
otherwise dispose of any of the Trust Property or interests
therein, including to Holders, except as expressly provided
herein, (iii) take any action that would cause the Trust to
become taxable other than as a grantor trust for United States
Federal income tax purposes, (iv) incur any indebtedness for
borrowed money or issue any other debt, or (v) take or consent to
any action that would result in the placement of a Lien on any of
the Trust Property. The Property Trustee shall defend all claims
and demands of all Persons at any time claiming any Lien on any
of the Trust Property adverse to the interest of the Trust or the
Holders in their capacity as Holders.
(c) In connection with the issue and sale of the
Trust Preferred Securities, the Depositor shall have the right
and responsibility to assist the Trust with respect to, or effect
on behalf of the Trust, the following (and any actions taken by
the Depositor in furtherance of the following prior to the date
of this Trust Agreement are hereby ratified and confirmed in all
respects):
(i) the preparation, execution and filing with the
Commission of a registration statement on the appropriate
form under the Securities Act with respect to the Trust
Preferred Securities;
14
(ii) the determination of the states in which to take
appropriate action to qualify or register for sale all or
part of the Trust Preferred Securities and the
determination of any and all such acts, other than
actions that must be taken by or on behalf of the Trust,
and the advice to the Administrators of actions they must
take on behalf of the Trust, and the preparation for
execution and filing of any documents to be executed and
filed by the Trust or on behalf of the Trust, as the
Depositor deems necessary or advisable in order to comply
with the applicable laws of any such States in connection
with the sale of the Trust Preferred Securities;
(iii) the negotiation of the terms of, and the execution
and delivery of, the Underwriting Agreement providing
for the sale of the Trust Preferred Securities; and
(iv) the taking of any other actions necessary or
desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary,
the Administrators and the Property Trustee are authorized and
directed to conduct the affairs of the Trust and to operate the
Trust so that the Trust will not be deemed to be an "investment
company" required to be registered under the Investment Company
Act, and will not be taxable other than as a grantor trust for
the United States Federal income tax purposes and so that the
[Subordinated] Debentures will be treated as indebtedness of the
Depositor for United States Federal income tax purposes. In this
connection, the Administrators, the Property Trustee and the
Holders of Trust Common Securities are authorized to take any
action, not inconsistent with applicable law, the Certificate of
Trust or this Trust Agreement, that the Administrators, Property
Trustee and Holders of Trust Common Securities determine in their
discretion to be necessary or desirable for such purposes, as
long as such action does not adversely affect in any material
respect the interests of the holders of the Outstanding Trust
Preferred Securities. In no event shall the Administrators or the
Trustees be liable to the Trust or the Holders for any failure to
comply with this Section that results from a change in law or
regulations or in the interpretation thereof. It is understood
that (i) by performing its duties and obligations as are
specifically set forth in this Trust Agreement, the Property
Trustee shall be deemed to have complied with the provisions of
the first sentence of this Section 207(d) and (ii) nothing in
this Section 207(d) shall require the Property Trustee to take
any actions other that those specifically required by this Trust
Agreement to be taken by it.
Section 208 ASSETS OF TRUST. The assets of the Trust shall
consist solely of the Trust Property.
Section 209 TITLE TO TRUST PROPERTY. Legal title to all
Trust Property shall be vested at all times in the Property
Trustee (in its capacity as such) and shall be held and
administered by the Property Trustee for the benefit of the Trust
and the Holders in accordance with this Trust Agreement.
ARTICLE III
PAYMENT ACCOUNT
Section 301 PAYMENT ACCOUNT.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and its
agents shall have exclusive control and sole right of
15
withdrawal with respect to the Payment Account for the
purpose of making deposits in and withdrawals from the Payment
Account in accordance with this Trust Agreement. All moneys and
other property deposited or held from time to time in the Payment
Account shall be held by the Property Trustee in the Payment
Account for the exclusive benefit of the Holders and for
distribution as herein provided, including (and subject to) any
priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment
Account, promptly upon receipt, all payments of principal of or
interest on, and any other payments or proceeds with respect to,
the [Subordinated] Debentures. Amounts held in the Payment
Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV
DISTRIBUTION; REDEMPTION
Section 401 DISTRIBUTIONS.
(a) The Trust Securities represent undivided beneficial
interests in the Trust Property, and Distributions (including of
Additional Amounts) will be made on the Trust Securities at the
rate and on the dates that payments of interest (including of
Additional Interest) are made on
the [Subordinated] Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be
cumulative and will accumulate whether or not there are
funds of the Trust available for the payment of
Distributions. Distributions shall accumulate from
__________, 20__, and, except in the event (and to the
extent) that the Depositor exercises its right to defer
the payment of interest on the [Subordinated] Debentures
pursuant to the Indenture, shall be payable quarterly in
arrears on __________,________, _________, and ________
of each year, commencing on _________, 20__. If any date
on which a Distribution is otherwise payable on the Trust
Securities is not a Business Day, then the payment of
such Distribution shall be made on the next succeeding
day that is a Business Day (without any additional
Distributions or other payment in respect of any such
delay), with the same force and effect as if made on the
date on which such payment was originally payable (each
date on which distributions are payable in accordance
with this Section 401(a), a "Distribution Date").
(ii) The Trust Securities shall be entitled to
Distributions payable at a rate of ____% per annum of the
Liquidation Amount of the Trust Securities. The amount of
Distributions payable for any period less than a full
Distribution period shall be computed on the basis of a
360-day year of twelve 30-day months and the actual
number of days elapsed in a partial month in a period.
Distributions payable for each full Distribution period
will be computed by dividing the rate per annum by four.
The amount of Distributions payable for any period shall
include any Additional Amounts in respect of such period.
(iii) So long as no Debenture Event of Default has
occurred and is continuing, the Depositor has the right
under the Indenture to defer the payment of interest on
the [Subordinated] Debentures at any time and from time
to time for a period not exceeding 20 consecutive
quarterly periods (an "Extension Period"), during which
Extension Periods the Depositor shall have the right to
make partial payments of interest on any Interest Payment
Date (as defined in the Indenture) and at the end of
16
which the Depositor shall pay all interest then accrued
and unpaid, provided that no Extension Period may extend
beyond ___________________ or end on a day other than an
Interest Payment Date. As a consequence of any such
deferral, quarterly Distributions on the Trust Securities
by the Trust will also be deferred (and the amount of
Distributions to which Holders of the Trust Securities
are entitled will accumulate additional Distributions
thereon at a rate of _______% per annum, compounded
quarterly from the relevant payment date for such
Distributions, computed on the basis of a 360-day year of
twelve 30-day months and the actual days elapsed in a
partial month in such period). Additional Distributions
payable for each full Distribution period will be
computed by dividing the rate per annum by four. The term
"Distributions" as used in this Section 401 shall include
any such additional Distributions provided pursuant to
this Section 401(a)(iii).
(iv) Distributions on the Trust Securities shall be made
by the Property Trustee from the Payment Account and
shall be payable on each Distribution Date only to the
extent that the Trust has funds then on hand and
available in the Payment Account for the payment of such
Distributions.
(b) Distributions on the Trust Securities with
respect to a Distribution Date shall be payable to the Holders
thereof as they appear on the Securities Register for the Trust
Securities at the close of business on the relevant record date,
which shall be at the close of business on the fifteenth day
(whether or not a Business Day) next preceding the relevant
Distribution Date.
Section 402 REDEMPTION.
(a) On each Debenture Redemption Date and on the stated
maturity of the [Subordinated] Debentures, the Trust will be
required to redeem a Like Amount of Trust Securities at the
Redemption Price.
(b) Notice of redemption shall be given by the
Property Trustee by first-class mail, postage prepaid, mailed not
less than 30 nor more than 60 days prior to the Redemption Date
to each Holder of Trust Securities to be redeemed, at such
Holder's address appearing in the Security Register. All notices
of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number or CUSIP numbers of the
Trust Preferred Securities affected;
(iv) if less than all the Outstanding Trust Securities
are to be redeemed, the identification and the total
Liquidation Amount of the particular Trust Securities to
be redeemed;
(v) that on the Redemption Date the Redemption Price will
become due and payable upon each such Trust Security to
be redeemed and that Distributions thereon will cease to
accumulate on and after said date, except as provided in
Section 402(e) below; and
(vi) the place or places where Trust Securities are to be
surrendered for the payment of the Redemption Price.
17
(c) The Trust in issuing the Trust Securities may use
"CUSIP" or "private placement" numbers (if then generally in
use), and, if so, the Property Trustee shall indicate the "CUSIP"
or "private placement" numbers of the Trust Securities in notices
of redemption and related materials as a convenience to Holders;
provided, that any such notice may state that no representation
is made as to the correctness of such numbers either as printed
on the Trust Securities or as contained in any notice of
redemption and related material.
(d) The Trust Securities redeemed on each Redemption
Date shall be redeemed at the Redemption Price with the
applicable proceeds from the contemporaneous redemption of
[Subordinated] Debentures. Redemptions of the Trust Securities
shall be made and the Redemption Price shall be payable on each
Redemption Date only to the extent that the Trust has funds then
on hand and available in the Payment Account for the payment of
such Redemption Price.
(e) If the Trust gives a notice of redemption in
respect of any Trust Preferred Securities, then, by 10:00 a.m.,
New York City time, on the Redemption Date, the Depositor shall
deposit sufficient funds with the Property Trustee to pay the
Redemption Price. If such deposit has been made, then by 12:00
noon, New York City time, on the Redemption Date, subject to
Section 402(c), the Property Trustee will, with respect to Trust
Preferred Securities held in global form, irrevocably deposit
with the Depositary for such Trust Preferred Securities, to the
extent available therefor, funds sufficient to pay the applicable
Redemption Price and will give such Depositary irrevocable
instructions and authority to pay the Redemption Price to the
Holders of the Trust Preferred Securities. With respect to Trust
Preferred Securities that are not held in global form, the
Property Trustee, subject to Section 402(c), will irrevocably
deposit with the Paying Agent, to the extent available therefor,
funds sufficient to pay the applicable Redemption Price and will
give the Paying Agent irrevocable instructions and authority to
pay the Redemption Price to the Holders of the Trust Preferred
Securities upon surrender of their Trust Preferred Securities
Certificates. Notwithstanding the foregoing, Distributions
payable on or prior to the Redemption Date for any
Trust Securities called for redemption shall be payable to the
Holders of such Trust Securities as they appear on the Securities
Register for the Trust Securities on the relevant record dates
for the related Distribution Dates. If notice of redemption shall
have been given and funds deposited as required, then, upon the
date of such deposit, all rights of Holders holding Trust
Securities so called for redemption will cease, except the right
of such Holders to receive the Redemption Price and any
Distribution payable in respect of the Trust Securities on or
prior to the Redemption Date, but without interest, and such
Trust Securities will cease to be Outstanding. In the event that
any date on which any applicable Redemption Price is payable is
not a Business Day, then payment of the applicable Redemption
Price payable on such date will be made on the next succeeding
day that is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such
Business Day falls in the next calendar year, such payment will
be made on the immediately preceding Business Day, in each case,
with the same force and effect as if made on such date. In the
event that payment of the Redemption Price in respect of any
Trust Securities called for redemption is improperly withheld or
refused and not paid either by the Trust or by the Depositor
pursuant to the Guarantee, Distributions on such Trust Securities
will continue to accumulate, as set forth in Section 401 and in
accordance with the continued accrual of interest on the [Subordinated]
Debentures, from the Redemption Date originally established by
the Trust for such Trust Securities to the date such applicable
Redemption Price is actually paid, in which case the actual
payment date will be the date fixed for redemption for purposes
of calculating the applicable Redemption Price.
(f) Subject to Section 403(a), if less than all the
Outstanding Trust Securities are to be redeemed on a Redemption
Date, then the aggregate Liquidation Amount of such Trust
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Securities to be redeemed shall be allocated pro rata to the
Trust Common Securities and the Trust Preferred Securities based
on the relative Liquidation Amounts of such classes. The amount
of premium, if any, paid by the Depositor upon the redemption of
all or any part of the [Subordinated] Debentures to be repaid or
redeemed on a Redemption Date shall be allocated to the redemption
pro rata of the Trust Preferred Securities and the Trust Common
Securities. The particular Trust Preferred Securities to be redeemed
shall be selected by the Property Trustee by such method (including,
without limitation, on a pro rata basis based on their respective
Liquidation mounts or by lot) as the Property Trustee shall deem
fair and appropriate, which may provide for the selection for
redemption of portions (equal to $_____ or integral multiples
thereof) of the Liquidation Amount of Trust Preferred Securities of a
denomination larger than $______, not more than 60 days prior to
the Redemption Date from the Outstanding Trust Preferred
Securities not previously called for redemption, or if the Trust
Preferred Securities are then held in the form of a Global Trust
Preferred Security, by the Depositary in accordance with the customary
procedures for the Depositary. In any such proration, the Property
Trustee shall make such adjustments so that any Trust Preferred
Security to be redeemed shall, after such redemption, be in an
authorized denomination. The Property Trustee shall promptly notify
the Securities Registrar in writing of the Trust Preferred Securities
selected for redemption and, in the case of any Trust Preferred
Securities selected for partial redemption, the Liquidation Amount
thereof to be redeemed. For all purposes of this Trust Agreement,
unless the context otherwise requires, all provisions relating to
the redemption of Trust Preferred Securities shall relate, in the
case of any Trust Preferred Securities redeemed or to be redeemed
only in part, to the portion of the aggregate Liquidation Amount
of Trust Preferred Securities that has been or is to be redeemed.
Section 403 SUBORDINATION OF TRUST COMMON SECURITIES.
(a) Payment of Distributions (including Additional Amounts,
if applicable) on, the Redemption Price of, and the Liquidation
Distribution in respect of, the Trust Securities, as applicable,
shall be made, subject to Section 402(e), pro rata among the
Trust Common Securities and the Trust Preferred Securities based
on the Liquidation Amount of such Trust Securities; provided,
however, that if on any Distribution Date or Redemption Date any
Event of Default resulting from a Debenture Event of Default in
Sections 8.01(a)(1) or (2) of the Indenture shall have occurred
and be continuing, no payment of any Distribution (including any
Additional Amounts) on, Redemption Price of, or Liquidation
Distribution in respect of, any Trust Common Security, and no
other payment on account of the redemption, liquidation or other
acquisition of Trust Common Securities, shall be made unless
payment in full in cash of all accumulated and unpaid
Distributions (including any Additional Amounts) on all
Outstanding Trust Preferred Securities for all Distribution
periods terminating on or prior thereto, or, in the case of
payment of the Redemption Price, the full amount of such
Redemption Price on all Outstanding Trust Preferred Securities
then called for redemption, or in the case of payment of the
Liquidation Distribution, the full amount of such Liquidation
Distribution on all Outstanding Trust Preferred Securities, shall
have been made or provided for, and all funds immediately
available to the Property Trustee shall first be applied to the
payment in full in cash of all Distributions (including any
Additional Amounts) on, or the Redemption Price of, or
Liquidation Distribution in respect of, Trust Preferred
Securities then due and payable. The existence of an Event of
Default does not entitle the Holders of Trust Preferred
Securities to accelerate the
maturity thereof.
(b) In the case of the occurrence of any Event of
Default resulting from any Debenture Event of Default, the Holder
of the Trust Common Securities shall be deemed to have waived any
right to act with respect to any such Event of Default under this
Trust Agreement until the effects of all such Events of Default
with respect to the Trust Preferred Securities have been
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cured, waived or otherwise eliminated. Until all such Events of
Default under this Trust Agreement with respect to the Trust
Preferred Securities have been so cured, waived or otherwise
eliminated, the Property Trustee shall act solely on behalf of
the Holders of the Trust Preferred Securities and not on behalf
of the Holder of the Trust Common Securities, and only the
Holders of the Trust Preferred Securities will have the right to
direct the Property Trustee to act on their behalf.
Section 404 PAYMENT PROCEDURES. Payments of Distributions
(including any Additional Amounts) in respect of the Trust
Preferred Securities shall be made by check mailed to the address
of the Person entitled thereto as such address shall appear on
the Securities Register or, if the Trust Preferred Securities are
held by the Depositary, such Distributions shall be made to the
Depositary in immediately available funds, which will credit the
relevant accounts on the applicable Distribution Dates. Payments in
respect of the Trust Common Securities shall be made in such manner
as shall be mutually agreed between the Property Trustee and the
Holder of the Trust Common Securities.
Section 405 TAX RETURNS AND REPORTS. The Administrators
shall prepare (or cause to be prepared), at the Depositor's
expense, and file all United States Federal, State and local tax
and information returns and reports required to be filed by or in
respect of the Trust. In this regard, the Administrators shall
(a) prepare and file (or cause to be prepared and filed) all
Internal Revenue Service forms required to be filed in respect of
the Trust in each taxable year of the Trust and (b) prepare and
furnish (or cause to be prepared and furnished) to each Holder
all Internal Revenue Service forms required to be provided by the
Trust. The Administrators shall provide the Depositor and the
Property Trustee with a copy of all such returns and reports
promptly after such filing or furnishing. The Property Trustee
shall comply with United States Federal withholding and backup
withholding tax laws and information reporting requirements with
respect to any payments to Holders under the Trust Securities.
On or before December 15 of each year during which any
Trust Preferred Securities are outstanding, the Administrators
shall furnish to the Paying Agent such information as may be
reasonably requested by the Property Trustee in order that the
Property Trustee may prepare the information which it is required
to report for such year on Internal Revenue Service Forms 1096
and 1099 pursuant to Section 6049 of the Code. Such information
shall include the amount of original issue discount includable in
income for each outstanding Trust Preferred Security during such
year, if any.
Section 406 PAYMENT OF TAXES, DUTIES, ETC. OF THE TRUST.
Upon receipt under the [Subordinated] Debentures of Additional
Sums and the written direction of any of the Administrators, the
Property Trustee shall promptly pay any taxes, duties or
governmental charges of whatsoever nature (other than withholding
taxes) imposed on the Trust by the United States or any other
taxing authority.
Section 407 PAYMENTS UNDER INDENTURE OR PURSUANT TO DIRECT
ACTIONS. Amount payable hereunder to any Holder of Trust
Preferred Securities shall be reduced by the amount of any
corresponding payment such Holder has directly received pursuant
to Section 8.04 of the Indenture or Section 513 of this Trust
Agreement.
Section 408 LIABILITY OF THE HOLDER OF TRUST COMMON
SECURITIES. The Holder of Trust Common Securities shall be liable
for the debts and obligations of the Trust as set forth in
Section 9.06 of the Indenture regarding allocation of expenses.
20
ARTICLE V
TRUST SECURITIES CERTIFICATES
Section 501 INITIAL OWNERSHIP. Upon the creation of the
Trust and the contribution by the Depositor pursuant to Section
203 and until the issuance of the Trust Securities, and at any
time during which no Trust Securities are Outstanding, the
Depositor shall be the sole beneficial owner of the Trust.
Section 502 THE TRUST SECURITIES CERTIFICATES.
(a) The Trust Preferred Securities Certificates shall be
issued in fully registered form in denominations of $_____
Liquidation Amount or integral multiples thereof. The Trust
Securities Certificates shall be executed on behalf of the Trust
by manual or facsimile signature of at least one Administrator.
Trust Securities Certificates bearing the manual or facsimile
signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf
of the Trust, shall be validly issued and entitled to the
benefits of this Trust Agreement, notwithstanding that such individuals
or any of them shall have ceased to be so authorized prior to the
delivery of such Trust Securities Certificates or did not hold
such offices at the date of delivery of such Trust Securities
Certificates. A transferee of a Trust Securities Certificate
shall become a Holder, and shall be entitled to the rights and
subject to the obligations of a Holder hereunder, upon due registration
of such Trust Securities Certificate in such transferee's name pursuant
to Section 505.
(b) Upon their original issuance, Trust Preferred
Securities Certificates representing Global Trust Preferred
Securities shall be issued in the form of one or more Global
Trust Preferred Securities Certificates registered in the name of
Cede as the Depositary's nominee and deposited with or on behalf
of the Depositary for credit by the Depositary to the respective
accounts of the Owners thereof (or such other accounts as they
may direct). Except as set forth herein, record ownership of the
Global Trust Preferred Securities may be transferred, in whole or
in part, only to the Depositary, another nominee of Depositary or
to a successor of the Depositary or its nominee.
(c) A single Trust Common Securities Certificate
representing the Trust Common Securities shall be issued to the
Depositor in the form of a definitive Trust Common Securities
Certificate.
Section 503 EXECUTION AND DELIVERY OF TRUST SECURITIES
CERTIFICATES. At the Closing Time, and on the date, if any, on which
the Underwriters exercise their option to purchase additional Trust
Preferred Securities pursuant to the terms of the Underwriting
Agreement, as applicable, an Administrator shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as
provided in Sections 204 and 205, to be executed on behalf of the
Trust and delivered to the Property Trustee and upon such
delivery the Property Trustee shall authenticate such Trust
Securities Certificates and deliver such Trust Securities
Certificates upon the written order of the Trust, executed by an
Administrator thereof, without further corporate action by the
Depositor, in authorized denominations. Only such Trust
Securities Certificates as shall bear thereon a certificate of
authentication substantially in the form provided for herein
executed by the Property Trustee by manual signature of an
authorized officer thereof shall be entitled to the benefits of
this Trust Agreement or be valid or obligatory for any purpose.
Section 504 GLOBAL TRUST PREFERRED SECURITIES.
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(a) The Global Trust Preferred Securities issued under this
Trust Agreement shall be registered in the name of the nominee of
the Depositary and delivered to the Property Trustee as custodian
therefor, and such Global Trust Preferred Security shall
constitute a single Trust Preferred Security for all purposes of
this Trust Agreement.
(b) Notwithstanding any other provision of this Trust
Agreement, except as contemplated by the provisions of paragraph
(c) below, unless the terms of a Global Trust Preferred Security
expressly permit such Global Trust Preferred Security to be
exchanged in whole or in part for individual Trust Preferred
Securities, a Global Trust Preferred Security may be transferred,
in whole but not in part and in the manner provided in Section 505,
only to a nominee of the Depositary for such Global Trust
Preferred Security, or to the Depositary, or to a successor
Depositary for such Global Trust Preferred Security selected or
approved by the Depositor, or to a nominee of such successor
Depositary.
(c) (1) If at any time the Depositary for a Global Trust
Preferred Security notifies the Depositor that it is
unwilling or unable to continue as the Depositary for
such Global Trust Preferred Security or if at any time
the Depositary for the Trust Preferred Securities shall
no longer be eligible or in good standing under the
Exchange Act, or other applicable statute or regulation,
the Depositor shall appoint a successor Depositary with
respect to such Global Trust Preferred Security. If a
successor Depositary for such Global Trust Preferred
Security is not appointed by the Depositor within 90 days
after the Depositor receives such notice or becomes aware
of such ineligibility, an Administrator will execute, and
the Property Trustee will authenticate and deliver, Trust
Preferred Securities in the form of definitive
certificates of like tenor and terms ("Definitive Trust
Preferred Securities") in a Liquidation Amount equal to
the Liquidation Amount of the Global Trust Preferred
Security in exchange for such Global Trust Preferred
Security. Such Definitive Trust Preferred Securities will
be issued in the form of a Trust Preferred Securities
Certificate or Certificates to and registered in the name
of such Person or Persons as are specified by the
Depositary.
(2) The Trust may at any time and in its sole discretion
determine that the Trust Preferred Securities issued or
issuable in the form of one or more Global Trust
Preferred Securities shall no longer be represented by
such Global Trust Preferred Security or Securities. In
any such event an Administrator will execute, and the
Property Trustee will authenticate and deliver without
service charge to each Person specified by the Depositary
a Trust Preferred Securities Certificate of like tenor in
a Liquidation Amount equal to the Liquidation Amount of
such Global Trust Preferred Security, or the aggregate
Liquidation Amount of such Global Trust Preferred
Securities, in exchange for such Global Trust Preferred
Security or Securities.
(3) Within seven days after the occurrence of an Event of
Default with respect to the Global Trust Preferred
Securities, the Administrator shall execute, and the
Property Trustee shall authenticate and deliver without
service charge to each Person specified by the Depository
a Trust Preferred Securities Certificate of like tenor in
a Liquidation Amount equal to the Liquidation Amount of
such Global Trust Preferred Security, or the aggregate
Liquidation Amount of such Global Trust Preferred
Securities in exchange for such Global Trust Preferred
Security or Securities.
(4) In any exchange provided for in any of the preceding
subparagraphs, an Administrator shall execute and the
Property Trustee shall authenticate and deliver
22
Trust Preferred Securities Certificates in authorized
denominations. Upon the exchange of the entire
Liquidation Amount of a Global Trust Preferred Security
for Definitive Trust Preferred Securities, such Global
Trust Preferred Security shall be canceled by the
Property Trustee. Definitive Trust Preferred Securities
issued in exchange for a Global Trust Preferred Security
pursuant to this Section shall be registered in such
names and in such authorized denominations as the
Depositary for such Global Trust Preferred Security,
acting pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the
Property Trustee. Provided that the Depositor and the
Property Trustee have so agreed, the Property Trustee
shall deliver a Trust Preferred Securities Certificate to
the Persons in whose names the Trust Preferred Securities
are so to be registered.
(5) Any endorsement of a Global Trust Preferred Security
to reflect the Liquidation Amount thereof, or any
increase or decrease in such Liquidation Amount, or
changes in the rights of Holders of Outstanding Trust
Preferred Securities represented thereby shall be made in
such manner and by such Person or Persons as shall be
specified in or pursuant to any applicable letter of
representations or other arrangement entered into with,
or procedures of, the Depositary with respect to such
Global Trust Preferred Security. Subject to the
provisions of Section 503, the Property Trustee shall
deliver and redeliver any such Global Trust Preferred
Security in the manner and upon instructions given by the
Person or Persons specified in or pursuant to any
applicable letter of representations or other arrangement
entered into with, or procedures of, the Depositary with
respect to such Global Trust Preferred Security.
(6) The Depositary or, if there be one, its nominee,
shall be the Holder of a Global Trust Preferred Security
for all purposes under this Trust Agreement; and
beneficial owners with respect to such Global Trust
Preferred Security shall hold their interests
pursuant to applicable procedures of such Depositary. The
Depositor, the Property Trustee and the Trust Preferred
Security Registrar shall be entitled to deal with such
Depositary for all purposes of this Trust Agreement
relating to such Global Trust Preferred Security
(including the payment of any Distributions and the
giving of instructions or directions by or to the
beneficial owners of such Global Trust Preferred Security
as the sole Holder of such Global Trust Preferred
Security) and shall have no obligations to the beneficial
owners thereof (including any direct or indirect
participants in such Depositary). None of the Depositor,
the Property Trustee, any Paying Agent or the Securities
Registrar shall have any responsibility or liability for
any aspect of the records relating to or payments made on
account of beneficial ownership interests of a Global
Trust Preferred Security in or pursuant to any applicable
letter of representations or other arrangement entered
into with, or procedures of, the Depositary with respect
to such Global Trust Preferred Security or for
maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
Section 505 REGISTRATION OF TRANSFER AND EXCHANGE
GENERALLY; CERTAIN TRANSFERS AND EXCHANGES; TRUST PREFERRED
SECURITIES CERTIFICATES. The Property Trustee shall keep or cause
to be kept at its Corporate Trust Office a register or registers
for the purpose of registering Trust Preferred Securities Certificates
and transfers and exchanges of Trust Preferred Securities Certificates
in which the registrar and transfer agent with respect to the Trust
Preferred Securities (the "Securities Registrar"), subject to
such reasonable regulations as it may prescribe, shall provide
for the registration of Trust Preferred Securities Certificates and
Trust Common Securities Certificates (subject to Section 511 in the
23
case of Trust Common Securities Certificates) and registration of
transfers and exchanges of Trust Preferred Securities
Certificates as herein provided. Such register is herein
sometimes referred to as the "Securities Register." The Property
Trustee is hereby appointed Securities Registrar for the purpose
of registering Trust Preferred Securities and transfers of Trust
Preferred Securities as herein provided.
Upon surrender for registration of transfer of any Trust
Preferred Security Certificate at the offices or agencies of the
Property Trustee designated for that purpose an Administrator
shall execute, and the Property Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees,
one or more new Trust Preferred Securities Certificates of any
authorized denominations of like tenor and aggregate Liquidation
Amount and bearing such restrictive legends as may be required by
this Trust Agreement.
At the option of the Holder, Trust Preferred Securities
Certificates may be exchanged for other Trust Preferred
Securities Certificates of any authorized denominations, of like
tenor and aggregate Liquidation Amount and bearing such
restrictive legends as may be required by this Trust Agreement,
upon surrender of the Trust Preferred Securities to be exchanged
at such office or agency. Whenever any Trust Preferred Securities
are so surrendered for exchange, an Administrator shall execute
and the Property Trustee shall authenticate and deliver the Trust
Preferred Securities that the Holder making the exchange is entitled
to receive.
All Trust Preferred Securities Certificates issued upon any
transfer or exchange of Trust Preferred Securities shall be the
valid obligations of the Trust, evidencing the same debt, and
entitled to the same benefits under this Trust Agreement, as the
Trust Preferred Securities Certificates surrendered upon such
transfer or exchange.
Every Trust Preferred Securities Certificate presented or
surrendered for transfer or exchange shall (if so required by the
Property Trustee) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the
Property Trustee and the Securities Registrar, duly executed by
the Holder thereof or such Holder's attorney duly authorized in
writing.
No service charge shall be made to a Holder for any
transfer or exchange of Trust Preferred Securities, but the
Property Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Trust Preferred
Securities.
Neither the Trust nor the Property Trustee shall be
required, pursuant to the provisions of this Section, (x) to
issue, register the transfer of or exchange any Trust Preferred
Security during a period beginning at the opening of business 15
days before the day of mailing of a notice of redemption of Trust
Preferred Securities pursuant to Article IV and ending at the
close of business on the day of mailing of such notice of
redemption, or (y) to register the transfer of or exchange any
Trust Preferred Security so selected for redemption in whole or
in part, except, in the case of any such Trust Preferred Security
to be redeemed in part, any portion thereof not to be redeemed.
None of the Trust, the Property Trustee, the Delaware
Trustee, any Paying Agent or the Securities Registrar will have
any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership
interests of a Global Trust Preferred Security or for
maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
24
Section 506 MUTILATED, DESTROYED, LOST OR STOLEN TRUST
SECURITIES CERTIFICATES. If (a) any mutilated Trust Securities
Certificate shall be surrendered to the Securities Registrar,
or if the Securities Registrar shall receive evidence to its
satisfaction of the destruction, loss or theft of any Trust Securities
Certificate and (b) there shall be delivered to the Securities
Registrar and the Administrators such security or indemnity as
may be required by them to save each of them harmless, then in
the absence of notice that such Trust Securities Certificate
shall have been acquired by a bona fide purchaser, the
Administrators, or any one of them, on behalf of the Trust shall
execute and make available for delivery, and the Property Trustee
shall authenticate, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Trust Securities
Certificate, a new Trust Securities Certificate of like class,
tenor and denomination.
Notwithstanding the foregoing, in case any such mutilated,
destroyed, lost or stolen Trust Securities Certificate has become
or is about to become due and payable, the Trust, in its
discretion (by an Administrator) may, instead of issuing a new
Trust Securities Certificate, pay such Trust Securities
Certificate.
In connection with the issuance of any new Trust Securities
Certificate under this Section, the Administrators or the
Securities Registrar may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed
in connection therewith.
Any duplicate Trust Securities Certificate issued pursuant
to this Section shall constitute conclusive evidence of an
undivided beneficial interest in the assets of the Trust
corresponding to that evidenced by the lost, stolen or destroyed
Trust Securities Certificate, as if originally issued, whether or
not the lost, stolen or destroyed Trust Securities Certificate
shall be found at any time.
The provisions of this Section 506 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement of mutilated, destroyed, lost or
stolen Trust Securities Certificates.
Section 507 PERSONS DEEMED HOLDERS. Prior to due
presentment of a Trust Preferred Securities Certificate for
registration of transfer, the Trustees, the Administrators or the
Securities Registrar shall treat the Person in whose name any
Trust Securities are issued as the owner of such Trust Securities
for the purpose of receiving Distributions and for all other
purposes whatsoever (subject to the record date provisions
hereof), and none of the Trustees, the Administrators nor the
Securities Registrar shall be bound by any notice to the
contrary.
Section 508 ACCESS TO LIST OF HOLDERS' NAMES AND ADDRESSES.
Semiannually, not later than _______________ and _______________
in each year, commencing with
the year 200_, and at such other times as the Property Trustee
may request in writing, the Depositor shall furnish or cause to
be furnished to the Property Trustee information as to the names
and addresses of the Holders, and the Property Trustee shall
preserve such information and similar information received by it
in any other capacity and afford to the Holders access to
information so preserved by it, all to such extent, if any, and
in such manner as shall be required by the Trust Indenture Act;
provided, however, that no such list need be furnished so long as
the Property Trustee shall be the Securities Registrar. Every
holder of Trust Securities by receiving and holding the same,
agrees with the Depositor and the Property Trustee that neither
the Depositor nor the Property Trustee nor any agent of either of
them shall be held accountable by reason of the disclosure of any
such information as to the names and addresses of the Holders of
Trust Securities in accordance with Section 312 of the Trust
Indenture Act, or any successor
25
section of such Act, regardless of the source from which such
information was derived, and that the Property Trustee shall not
be held accountable by reason of mailing any material pursuant
to a request made under Section 312(b) of the Trust Indenture
Act, or any successor section of such Act.
Section 509 MAINTENANCE OF OFFICE OR AGENCY. The Property
Trustee shall designate, with the consent of the Administrators,
which consent shall not be unreasonably withheld, an office or
offices or agency or agencies where Trust Preferred Securities
Certificates may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Trustees in
respect of the Trust Securities Certificates may be served. The
Property Trustee initially designates its Corporate Trust Office
[ ], Attention: Corporate Trustee Administration
Department, as its corporate trust office for such purposes.
The Property Trustee shall give prompt written notice to the
Depositor, the Administrators and to the Holders of any change in
the location of the Securities Register or any such office or
agency.
Section 510 APPOINTMENT OF PAYING AGENT. The Paying Agent
shall make Distributions to Holders from the Payment Account and
shall report the amounts of such Distributions to the Property
Trustee and the Administrators. Any Paying Agent shall have the
revocable power to withdraw funds from the Payment Account solely
for the purpose of making the Distributions referred to above.
The Property Trustee may revoke such power and remove any Paying
Agent in its sole discretion. The Paying Agent shall initially be
the Property Trustee. Any Person acting as Paying Agent shall be
permitted to resign as Paying Agent upon 30 days' written notice
to the Administrators, and the Property Trustee. In the event
that the Property Trustee shall no longer be the Paying Agent or
a successor Paying Agent shall resign or its authority to act be
revoked, the Property Trustee shall appoint a successor (which
shall be a bank or trust company) that is reasonably acceptable
to the Administrators to act as Paying Agent. Such successor
Paying Agent or any additional Paying Agent appointed by the
Property Trustee shall execute and deliver to the Trustees an
instrument in which such successor Paying Agent or additional
Paying Agent shall agree with the Trustees that as Paying Agent,
such successor Paying Agent or additional Paying Agent will hold
all sums, if any, held by it for payment to the Holders in trust
for the benefit of the Holders entitled thereto until such sums
shall be paid to such Holders. The Paying Agent shall return all
unclaimed funds to the Property Trustee and upon removal of a
Paying Agent such Paying Agent shall also return all funds in its
possession to the Property Trustee. The provisions of Sections
801, 803 and 806 herein shall apply to the Bank also in its role
as Paying Agent, for so long as the Bank shall act as Paying
Agent and, to the extent applicable, to any other paying agent
appointed hereunder. Any reference in this Trust Agreement to the
Paying Agent shall include any co-paying agent chosen by the
Property Trustee unless the context requires otherwise.
Section 511 OWNERSHIP OF TRUST COMMON SECURITIES BY
DEPOSITOR. At each Closing Time, the Depositor shall acquire and
retain beneficial and record ownership of the Trust Common Securities.
Neither the Depositor nor any successor Holder of the Trust Common
Securities may transfer less than all the Trust Common Securities,
and the Depositor or any such successor Holder may transfer the Trust
Common Securities only (i) in connection with a consolidation or
merger of the Depositor into another entity or any conveyance,
transfer or lease by the Depositor of its properties and assets
substantially as an entirety to any Person, pursuant to Section
12.01 of the Indenture, or (ii) to an Affiliate of the Depositor
in compliance with applicable law (including the Securities Act
and applicable State securities and blue sky laws); provided that
any such transfer shall be subject to the condition that the
transferor shall
26
have obtained (A) either a ruling from the Internal Revenue
Service or an unqualified written opinion addressed to the Trust
and delivered to the Trustees of nationally recognized
independent tax counsel experienced in such matters to the effect
that such transfer will not (1) cause the Trust to be treated as
issuing a class of interests in the Trust differing from the
class of interests represented by the Trust Common Securities
originally issued to the Depositor, (2) result in the Trust
acquiring or disposing of, or being deemed to have acquired or
disposed of, an asset, or (3) result in or cause the Trust to be
treated as anything other than a grantor trust for United States
Federal income tax purposes and (B) an unqualified written opinion
addressed to the Trust and delivered to the Trustees of a
nationally recognized independent counsel experienced in such
matters that such transfer will not cause the Trust to be an
"investment company" or controlled by an "investment company"
that is required to be registered under the Investment Company
Act. To the fullest extent permitted by law, any attempted
transfer of the Trust Common Securities, other than as set forth
in the immediately preceding sentence, shall be void. The
Administrators shall cause each Trust Common Securities
Certificate issued to the Depositor to contain a legend stating
"THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE DEPOSITOR OR
AN AFFILIATE OF THE DEPOSITOR IN COMPLIANCE WITH APPLICABLE LAW
AND SECTION 511 OF THE TRUST AGREEMENT."
Section 512 NOTICES TO DEPOSITARY. To the extent that a
notice or other communication to the Holders is required under
this Trust Agreement, with respect to Trust Preferred Securities
represented by Global Trust Preferred Securities Certificates,
the Administrators and the Trustees shall give all such notices
and communications specified herein to be given to the
Depositary, and shall have no obligations to the Owners.
Section 513 RIGHTS OF HOLDERS.
(a) The legal title to the Trust Property is vested
exclusively in the Property Trustee (in its capacity as such) in
accordance with Section 209, and the Holders shall not have any
right or title therein other than the undivided beneficial
ownership interest in the assets of the Trust conferred by their
Trust Securities and they shall have no right to call for any
partition or division of property, profits or rights of the Trust
except as described below. The Trust Securities shall be personal
property giving only the rights specifically set forth therein
and in this Trust Agreement. The Trust Securities shall have no
preemptive or similar rights and when issued and delivered to
Holders against payment of the purchase price therefor, as
provided herein, will be fully paid and nonassessable by the
Trust. Except as otherwise provided in Section 408, the Holders
of the Trust Securities, in their capacities as such, shall be
entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under
the General Corporation Law of the State of Delaware.
(b) For so long as any Trust Preferred Securities remain
Outstanding, if, upon a Debenture Event of Default, the Debenture
Trustee fails or the holders of not less than 33% in principal
amount of the outstanding [Subordinated] Debentures fail to
declare the principal of all of the [Subordinated] Debentures to
be immediately due and payable, the Holders of at least 33% in
Liquidation Amount of the Trust Preferred Securities then
Outstanding shall have such right to make such declaration by a
notice in writing to the Property Trustee, the Depositor and the
Debenture Trustee.
At any time after such a declaration of acceleration with respect
to the [Subordinated] Debentures has been made and before a
judgment or decree for payment of the money due has been obtained
by the Debenture Trustee as provided in the Indenture, the
Holders of a Majority in Liquidation Amount of the Trust
Preferred Securities, by written notice to the Property
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Trustee, the Depositor and the Debenture Trustee, may rescind and
annul such declaration and its consequences
(i) the Depositor has paid or deposited with the
Debenture Trustee a sum sufficient to pay
(1) all overdue installments of interest on all of the
[Subordinated] Debentures,
(2) any accrued Additional Interest on all of the
[Subordinated] Debentures,
(3) the principal of any [Subordinated] Debentures
which have become due otherwise than by such
declaration of acceleration and interest and Additional
Interest thereon at the rate borne by the
[Subordinated] Debentures, and
(4) all sums paid or advanced by the Debenture Trustee
under the Indenture and the reasonable compensation,
expenses, disbursements and advances of the Debenture
Trustee and the Property Trustee, their agents and
counsel; and
(ii) all Debenture Events of Default, other than the non-
payment of the principal of the [Subordinated] Debentures
which has become due solely by such acceleration, have
been cured or waived as provided in Section 8.07 of the
Indenture.
The Holders of at least a Majority in Liquidation Amount of
the Trust Preferred Securities may, on behalf of the Holders of
all the Trust Preferred Securities, waive any past default under
the Indenture, except a default in the payment of principal or
interest (unless such default has been cured and a sum sufficient
to pay all matured installments of interest and principal due
otherwise than by acceleration has been deposited with the
Debenture Trustee) or a default in respect of a covenant or
provision which under the Indenture cannot be modified or amended
without the consent of the holder of each outstanding
[Subordinated] Debentures. No such rescission shall affect any
subsequent default or impair any right consequent thereon.
Upon receipt by the Property Trustee of written
notice declaring such an acceleration, or rescission and
annulment thereof, by Holders of the Trust Preferred Securities
all or part of which is represented by Global Trust Preferred
Securities, a record date shall be established for determining
Holders of Outstanding Trust Preferred Securities entitled to
join in such notice, which record date shall be at the close of
business on the day the Property Trustee receives such notice.
The Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to join in such
notice, whether or not such Holders remain Holders after such
record date; provided, that, unless such declaration of
acceleration, or rescission and annulment, as the case may be,
shall have become effective by virtue of the requisite percentage
having joined in such notice prior to the day which is 90 days
after such record date, such notice of declaration of
acceleration, or rescission and annulment, as the case may be,
shall automatically and without further action by any Holder be
canceled and of no further effect. Nothing in this paragraph
shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new written notice of
declaration of acceleration, or rescission and annulment thereof,
as the case may be, that is identical to a written notice which
has been canceled pursuant to the proviso to the preceding
sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 513(b).
(c) For so long as any Trust Preferred Securities
remain Outstanding, to the fullest extent permitted by law and
subject to the terms of this Trust Agreement and the Indenture,
upon a Debenture Event of Default specified in Sections
8.01(a)(1) or (2) of the Indenture, any
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Holder of Trust Preferred Securities shall have the right to
institute a proceeding directly against the Depositor, pursuant
to Section 8.04 of the Indenture, for enforcement of payment to
such Holder of the principal amount of [Subordinated] Debentures
having an aggregate principal amount equal to the aggregate
Liquidation Amount of the Trust Preferred Securities of such
Holder (a "Direct Action"). Except as set forth in Sections
513(b) and 513(c), the Holders of Trust Preferred Securities
shall have no right to exercise directly any right or remedy
available to the holders of, or in respect of, the [Subordinated]
Debentures.
The holders of a Majority in Liquidation Amount of
the Trust Preferred Securities at the time Outstanding shall have
the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee, or
exercising any trust or power conferred on the Property Trustee
with respect to the Trust Preferred Securities; provided,
however, that, the Property Trustee shall have the right to
decline to follow any such direction if the Property Trustee
being advised by counsel determines that the action so directed
may not lawfully be taken, or if the Property Trustee in good
faith shall determine that the proceedings so directed would be
illegal or involve it in personal liability or be unduly
prejudicial to the rights of Holders of Trust Preferred Securities
not parties to such direction, and provided further that nothing in
this Trust Agreement shall impair the right of the Property Trustee
to take any action deemed proper by the Property Trustee and which
is not inconsistent with such direction by such Holders.
ARTICLE VI
ACTS OF HOLDERS; MEETINGS; VOTING
Section 601 LIMITATIONS ON HOLDER'S VOTING RIGHTS.
(a) Except as provided in this Trust Agreement and in the
Indenture and as otherwise required by law, no Holder of Trust
Preferred Securities shall have any right to vote or in any
manner otherwise control the administration, operation and
management of the Trust or the obligations of the parties hereto,
nor shall anything herein set forth or contained in the terms of
the Trust Securities Certificates be construed so as to
constitute the Holders from time to time as members of an
association.
(b) So long as any [Subordinated] Debentures are held
by the Property Trustee on behalf of the Trust, the Property
Trustee shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the
Debenture Trustee, or execute any trust or power conferred on the
Property Trustee with respect to such [Subordinated] Debentures,
(ii) waive any past default that may be waived under Section 8.07
of the Indenture, (iii) exercise any right to rescind or annul a
declaration that the principal of all the [Subordinated]
Debentures shall be due and payable or (iv) consent to any
amendment, modification or termination of the Indenture or the
[Subordinated] Debentures, where such consent shall be required,
without, in each case, obtaining the prior approval of the
Holders of at least a Majority in Liquidation Amount of the Trust
Preferred Securities, provided, however, that where a consent
under the Indenture would require the consent of each holder of
[Subordinated] Debentures affected thereby, no such consent shall
be given by the Property Trustee without the prior written
consent of each Holder of Trust Preferred Securities. The
Property Trustee shall not revoke any action previously
authorized or approved by a vote of the Holders of Trust
Preferred Securities, except by a subsequent vote of the Holders
of Trust Preferred Securities. Subject to Section 803, the
Property Trustee shall notify all Holders of the Trust Preferred
Securities of any notice of default received with respect to the
[Subordinated] Debentures. In
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addition to obtaining the foregoing approvals of the Holders of
the Trust Preferred Securities, prior to taking any of the
foregoing actions, the Property Trustee shall, at the expense of
the Depositor, obtain an Opinion of Counsel experienced in such
matters to the effect that such action will not cause the Trust
to be taxable other than as a grantor trust for United States
Federal income tax purposes.
(c) If any proposed amendment to the Trust Agreement
provides for, or the Trust otherwise proposes to effect, (i) any
action that would adversely affect in any material respect the
interests, powers, preferences or special rights of the Trust
Preferred Securities, whether by way of amendment to the Trust
Agreement or otherwise, or (ii) the dissolution, winding-up or
termination of the Trust, other than pursuant to the terms of
this Trust Agreement, then the Holders of Outstanding Trust
Securities as a class will be entitled to vote on such amendment
or proposal and such amendment or proposal shall not be effective
except with the approval of the Holders of at least a Majority
in Liquidation Amount of the Trust Preferred Securities; except
as otherwise provided in Section 1002(c). Notwithstanding any other
provision of this Trust Agreement, no amendment to this Trust
Agreement may be made if, as a result of such amendment, it would
cause the Trust to be taxable other than as a grantor trust for
United States Federal income tax purposes.
Section 602 NOTICE OF MEETINGS. Notice of all meetings of
the Holders, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section 1008,
not less than 21 nor more than 180 days prior to the date fixed
for the meeting.
Section 603 MEETINGS OF HOLDERS.
(a) A meeting of any class of Holders may be called at any
time and from time to time pursuant to this Article VI to make,
give or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Trust
Agreement to be made, given or
taken by Holders.
(b) The Property Trustee, by giving notice as provided in
Section 602, may at any time call a meeting of Holders for any
purpose specified in subsection (a) of this Section, to be held
at such time and at such place in the __________________________,
as the Property Trustee shall determine, or, with the approval of
the Administrators, at any other place. If the Property Trustee
shall have been requested to call a meeting of the Holders of
Trust Preferred Securities by the Holders of 33% in aggregate
Liquidation Amount of all Trust Preferred Securities, for any
purpose specified in subsection (a) of this Section, by written
request setting forth in reasonable detail the action proposed to
be taken at the meeting, and the Property Trustee shall not have
given the notice of such meeting within 21 days after receipt of
such request or shall not thereafter proceed to cause the meeting
to be held as provided herein, then the Holders of Trust
Preferred Securities in the Liquidation Amount above specified,
as the case may be, may determine the time and the place in the
____________________, or in such other place as shall be
determined or approved by the Administrators, for such meeting
and may call such meeting for such purposes by giving notice
thereof as provided in this subsection (b). The Administrators or
the Property Trustee may, at any time in their discretion, call a
meeting of Holders of Trust Preferred Securities to vote on any
matters as to which Holders are entitled to vote.
(c) Any meeting of Holders shall be valid without
notice if the Holders of all Outstanding Trust Securities, Trust
Common Securities or Trust Preferred Securities, as the case may
be, are present in person or by proxy and if representatives of
the Depositor, the Trust and the Property Trustee are present, or
if notice is waived in writing before or after the meeting by
such
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Holders, or by such of them as are not present at the meeting in
person or by proxy, and by the Depositor, the Trust and the
Property Trustee.
(d) To be entitled to vote at any meeting of Holders
of Trust Securities, a Person shall be (a) a Holder of one or
more Outstanding Trust Securities, Trust Common Securities or
Trust Preferred Securities, as the case may be, or (b) a Person
appointed by an instrument in writing as proxy for such Holder or
Holders by such Holder or Holders. The only Persons who shall be
entitled to attend any meeting of Holders of Trust Securities
shall be the Persons entitled to vote at such meeting and their
counsel, any representatives of the Property Trustee and its
counsel, any representatives of the Trust and its counsel and any
representatives of the Depositor and its counsel.
(e) The Persons entitled to vote at least a Majority
in Liquidation Amount of the Outstanding Trust Securities with
respect to which a meeting shall have been called as herein
before provided, considered as one class, shall constitute a
quorum for a meeting of Holders of such Trust Securities;
provided, however, that if any action is to be taken at such
meeting which this Trust Agreement expressly provides may be
taken by the Holders of a specified percentage, which is less than
a Majority in Liquidation Amount, of such Outstanding Trust
Securities, considered as one class, the Persons entitled to vote
such specified percentage in Liquidation Amount of such
Outstanding Trust Securities, considered as one class, shall
constitute a quorum. In the absence of a quorum within one hour
of the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of such Trust Securities,
be dissolved. In any other case the meeting may be adjourned for
such period as may be determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may
be further adjourned for such period as may be determined by the
chairman of the meeting prior to the adjournment of such
adjourned meeting. Except as provided by Section 604(e), notice
of the reconvening of any meeting adjourned for more than 30 days
shall be given as provided in subsection (b) of this Section not
less than ten days prior to the date on which the meeting is
scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall state expressly the percentage, as
provided above, of the Liquidation Amount of the Outstanding
Trust Securities which shall constitute a quorum.
(f) Except as limited by Section [ ] of the
Indenture, any resolution presented to a meeting or adjourned
meeting duly reconvened at which a quorum is present as aforesaid
may be adopted only by the affirmative vote of the Holders of a
Majority in Liquidation Amount of the Outstanding Trust
Securities, Trust Common Securities or Trust Preferred
Securities, as the case may be, with respect to which such
meeting shall have been called, considered as one class;
provided, however, that, except as so limited, any resolution
with respect to any action which this Trust Agreement expressly
provides may be taken by the Holders of a specified percentage,
which is less than a Majority in Liquidation Amount, of such
Outstanding Trust Securities, considered as one class, may be
adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote
of the Holders of such specified percentage in Liquidation Amount
of such Outstanding Trust Securities, considered as one class.
(g) Any resolution passed or decision taken at any
meeting of Holders of Trust Securities, Trust Common Securities
or Trust Preferred Securities, as the case may be, duly held in
accordance with this Section shall be binding on all such
Holders, whether or not present or represented at the meeting.
Section 604 ATTENDANCE AT MEETINGS; DETERMINATION OF VOTING
RIGHTS;
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CONDUCT AND ADJOURNMENT OF MEETINGS.
(a) Attendance at meetings of Holders may be in person or by
proxy; and, to the extent permitted by law, any such proxy shall
remain in effect and be binding upon any future Holder of the
Trust Securities with respect to which it was given unless and
until specifically revoked by the Holder or future Holder of such
Trust Securities before being voted.
(b) Notwithstanding any other provisions of this
Trust Agreement, the Property Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Holders
in regard to proof of the holding of such Trust Securities and of
the appointment of proxies and in regard to the appointment and
duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as
it shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Trust Securities
shall be proved in the manner specified in Section 608 and the
appointment of any proxy shall be proved in the manner specified
in Section 608. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof
specified in Section 608 or other proof.
(c) The Property Trustee shall, by an instrument in
writing, appoint a temporary chairman of the meeting, unless the
meeting shall have been called by the Administrators or by
Holders as provided in Section 603(b), in which case the
Administrators or the Holders of Trust Securities calling the
meeting, as the case may be, shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons
entitled to vote a Majority in Liquidation Amount of the
Outstanding Trust Securities represented at the meeting,
considered as one class.
(d) At any meeting each Holder or proxy shall be
entitled to one vote for each $___ Liquidation Amount of Trust
Securities held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any
Trust Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of
the meeting shall have no right to vote, except as a Holder of a
Trust Security or proxy.
(e) Any meeting duly called pursuant to Section 603
at which a quorum is present may be adjourned from time to time
by Persons entitled to vote a Majority in Liquidation Amount of
the Outstanding Trust Securities as may be represented at the
meeting, considered as one class; and the meeting may be held as
so adjourned without further notice.
Section 605 COUNTING VOTES AND RECORDING ACTION OF
MEETINGS. The vote upon any resolution submitted to any meeting
of Holders shall be by written ballots on which shall be
subscribed the signatures of the Holders or of their representatives
by proxy and the aggregate Liquidation Amount and serial numbers of
the Outstanding Trust Securities with respect to which the meeting
shall have been called, held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with the
secretary of the meeting their verified written reports of all
votes cast at the meeting. A record of the proceedings of each
meeting of Holders shall be prepared by the secretary of the
meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken
thereat and affidavits by one or more persons having knowledge of
the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 602.
Each copy shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one such copy
shall be delivered to
32
the Administrators, and another to the Property Trustee to be
preserved by the Property Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed
and verified shall be conclusive evidence of the matters therein
stated.
Section 606 HOLDER ACTION BY WRITTEN CONSENT. In lieu of a
vote of Holders at a meeting as hereinbefore contemplated in this
Article, any request, demand, authorization, direction, notice, consent,
waiver or other action may be made, given or taken by Holders by
written instruments as provided in Section 608.
Section 607 RECORD DATE FOR VOTING AND OTHER PURPOSES. For
the purposes of determining the Holders who are entitled to notice of
and to vote at any meeting or by written consent, or to participate in
any distribution on the Trust Securities in respect of which a record
date is not otherwise provided for in this Trust Agreement, or
for the purpose of any other action, the Administrators or
Property Trustee may from time to time fix a date, not more than
90 days prior to the date of any meeting of Holders or the
payment of a distribution or other action, as the case may be, as
a record date for the determination of the identity of the
Holders of record for such purposes.
Section 608 ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, election, waiver or other action provided by this Trust
Agreement to be made, given or taken by Holders may be embodied
in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by an agent
duly appointed in writing or, alternatively, may be embodied in
and evidenced by the record of Holders voting in favor thereof,
either in person or by proxies duly appointed in writing, at any
meeting of Holders duly called and held in accordance with the
provisions of this Article VI, or a combination of such
instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when such
instrument or instruments or record or both are delivered to the
Property Trustee. Such instrument or instruments and any such
record (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments and so voting at any such
meeting. Proof of execution of any such instrument or of a
writing appointing any such agent, or of the holding by any
Person of a Trust Security, shall be sufficient for any purpose
of this Trust Agreement and (subject to Section 801) conclusive
in favor of the Trustees, if made in the manner provided in this
Section. The record of any meeting of Holders shall be proved in
the manner provided in Section 605.
(b) The fact and date of the execution by any Person
of any such instrument or writing may be proved by the affidavit
of a witness of such execution or by a certificate of a notary
public or other officer authorized by law to take acknowledgments
of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof or may be
proved in any other manner which the Property Trustee or the
Administrator receiving the same deems sufficient. Where such
execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority.
(c) The Liquidation Amount and serial numbers of
Trust Securities held by any Person, and the date of holding the
same, shall be proved by the Securities Register.
(d) Any request, demand, authorization, direction,
notice, consent, election, waiver or other Act of a Holder shall
bind every future Holder of the same Trust Security and the
Holder of
33
every Trust Security issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustees,
the Administrators or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
(e) Until such time as written instruments shall have
been delivered to the Property Trustee with respect to the
requisite percentage of Liquidation Amount of Trust Securities
for the action contemplated by such instruments, any such
instrument executed and delivered by or on behalf of a Holder may
be revoked with respect to any or all of such Trust Securities by
written notice by such Holder or any subsequent Holder, proven in
the manner in which such
instrument was proven.
(f) Trust Securities authenticated and delivered
after any Act of Holders of such Trust Securities may, and shall
if required by the Property Trustee, bear a notation in form
approved by the Property Trustee as to any action taken by such
Act of Holders. If the Administrators shall so determine, new
Trust Securities, so modified as to conform, in the opinion of
the Property Trustee and the Administrators, to such action may be
prepared and executed on behalf of the Trust by an Administrator and
authenticated and delivered by the Property Trustee in exchange
for such Outstanding Trust Securities.
(g) If the Trust (by the Administrators) shall
solicit from Holders any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Trust (by
the Administrators) may, at its option, fix in advance a record
date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent,
waiver or other Act, but shall have no obligation to do so. If such
a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such
record date, but only the Holders of record at the close of
business on the record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite
proportion of the Outstanding Trust Securities have authorized or
agreed or consented to such request, demand, authorization, direction,
notice, consent, waiver or other Act, and for that purpose the
Outstanding Trust Securities shall be computed as of the record date.
(h) If any dispute shall arise among the Holders, the
Administrators or the Trustees with respect to the authenticity,
validity or binding nature of any request, demand, authorization,
direction, consent, waiver or other Act of such Holder or Trustee
under this Article VI, then the determination of such matter by
the Property Trustee shall be conclusive with respect to such
matter.
(i) A Holder may institute a legal proceeding
directly against the Depositor under the Guarantee to enforce its
rights under the Guarantee without first instituting a legal
proceeding against the Guarantee Trustee (as defined in the
Guarantee), the Trust, any Trustee, any Administrator or any
person or entity.
Section 609 INSPECTION OF RECORDS. Upon reasonable notice
to the Administrators and the Property Trustee, the records of
the Trust shall be open to inspection by Holders during normal
business hours for any purpose reasonably related to such
Holder's interest as a Holder.
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Section 701 REPRESENTATIONS AND WARRANTIES OF THE PROPERTY
TRUSTEE AND THE DELAWARE TRUSTEE. The Property Trustee and the
Delaware Trustee, each severally on behalf of and as to itself,
hereby represents and warrants for the benefit of the Depositor
and the Holders that:
(a) The Property Trustee is a banking corporation with
corporate trust powers, duly organized, validly existing and
in good standing under the laws of the State of New York,
with corporate trust power and authority to execute and
deliver, and to carry out and perform its obligations under
the terms of this Trust Agreement.
(b) The execution, delivery and performance by the Property
Trustee of this Trust Agreement has been duly authorized by
all necessary corporate action on the part of the Property
Trustee; and this Trust Agreement has been duly executed and
delivered by the Property Trustee, and constitutes a legal,
valid and binding obligation of the Property Trustee,
enforceable against it in accordance with its terms, subject
to applicable bankruptcy, reorganization, moratorium,
insolvency, and other similar laws affecting creditors'
rights generally and to general principles of equity and the
discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding
in equity or at law).
(c) The execution, delivery and performance of this Trust
Agreement by the Property Trustee does not conflict with or
constitute a breach of the certificate of incorporation or
by-laws of the Property Trustee.
(d) At the Closing Time, the Property Trustee has not
knowingly created any Liens on the Trust Securities.
(e) No consent, approval or authorization of, or
registration with or notice to, any New York State or
Federal banking authority governing the banking or trust
powers of the Property Trustee is required for the
execution, delivery or performance by the Property Trustee,
of this Trust Agreement.
(f) The Delaware Trustee is duly organized, validly existing
and in good standing under the laws of the State of
Delaware, with corporate trust power and authority to
execute and deliver, and to carry out and perform its
obligations under the terms of, this Trust Agreement.
(g) The execution, delivery and performance by the Delaware
Trustee of this Trust Agreement has been duly authorized by
all necessary corporate action on the part of the Delaware
Trustee; and this Trust Agreement has been duly executed and
delivered by the Delaware Trustee, and constitutes a legal,
valid and binding obligation of the Delaware Trustee,
enforceable against it in accordance with its terms, subject
to applicable bankruptcy, reorganization, moratorium,
insolvency, and other similar laws affecting creditors'
rights generally and to general principles of equity and the
discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding
in equity or at law).
35
(h) The execution, delivery and performance of this Trust
Agreement by the Delaware Trustee does not conflict with or
constitute a breach of the certificate of incorporation or
by-laws of the Delaware Trustee.
(i) No consent, approval or authorization of, or
registration with or notice to any Delaware, State or
Federal banking authority governing the trust powers of the
Delaware Trustee is required for the execution, delivery or
performance by the Delaware Trustee, of this Trust
Agreement.
(j) The Delaware Trustee is an entity which has its
principal place of business in the State of Delaware.
Section 702 REPRESENTATIONS AND WARRANTIES OF DEPOSITOR.
The Depositor hereby represents and warrants for the benefit of
the Holders that:
(a) the Trust Securities Certificates issued at the Closing
Time on behalf of the Trust have been duly authorized and
will have been duly and validly executed, and, subject to
payment therefor, issued and delivered by the Trust pursuant
to the terms and provisions of, and in accordance with the
requirements of, this Trust Agreement, and the Holders will
be, as of each such date, entitled to the benefits of this
Trust Agreement; and
(b) there are no taxes, fees or other governmental charges
payable by the Trust (or the Administrators or Trustees on
behalf of the Trust) under the laws of the State of Delaware
or any political subdivision thereof in connection with the
execution, delivery and performance by either the Property
Trustee or the Delaware Trustee, as the case may be, of this
Trust Agreement.
ARTICLE VIII
THE TRUSTEES; THE ADMINISTRATORS
Section 801 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The duties and responsibilities of the Trustees and the
Administrators shall be as provided by this Trust Agreement, and,
in the case of the Property Trustee, by the Trust Indenture Act,
and no implied covenants or obligations shall be read into this
Trust Agreement against the Property Trustee. For purposes of
Sections 315(a) and 315(c) of the Trust Indenture Act, the term
"default" is hereby defined as an Event of Default which has
occurred and is continuing.
(b) All payments made by the Property Trustee or a
Paying Agent in respect of the Trust Securities shall be made
only from the revenue and proceeds from the Trust Property and
only to the extent that there shall be sufficient revenue or
proceeds from the Trust Property to enable the Property Trustee
or a Paying Agent to make payments in accordance with the terms
hereof. Each Holder, by its acceptance of a Trust Security,
agrees that it will look solely to the revenue and proceeds from
the Trust Property to the extent legally available for
distribution to it as herein provided and that neither the
Trustees nor the Administrators are personally liable to it for
any amount distributable in respect of any Trust Security or for
any other liability in respect of any Trust Security. This
Section 801(b) does not limit the liability of the Trustees
expressly set forth elsewhere in this Trust Agreement or, in the
case of the Property Trustee, in the Trust Indenture Act.
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(c) The Property Trustee, prior to the occurrence of
an Event of Default and after the curing or waiving of all Events
of Default that may have occurred, undertakes to perform such
duties and only such duties as are specifically set forth in this
Trust Agreement. In case an Event of Default of which a
Responsible Officer of the Property Trustee has actual knowledge
has occurred (which has not been cured or waived), the Property
Trustee shall exercise such of the rights and powers vested in it
by this Trust Agreement, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or
use under the circumstances in the conduct of such person's own
affairs.
(d) No provision of this Trust Agreement shall be
construed to relieve the Property Trustee from liability for its
own negligent action, its own negligent failure to act or its own
willful misconduct, except that prior to the occurrence of an
Event of Default and after the curing or waiving of all Events of
Default which may have occurred
(i) the duties and obligations of the Property Trustee
shall be determined solely by the express provisions of
this Trust Agreement, and the Property Trustee shall not
be liable except for the performance of such duties and
obligations as are specifically set forth in this Trust
Agreement, and no implied covenants or obligations shall
be read into this Trust Agreement against the Property
Trustee; and
(ii) in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may conclusively
rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Property
Trustee and conforming to the requirements of this Trust
Agreement; but, in the case of any such certificates or
opinions that by any provision hereof are specifically
required to be furnished to the Property Trustee, the
Property Trustee shall be under a duty to examine the
same to determine whether or not they conform to the
requirements of this Trust Agreement.
(e) The Property Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer or
Officers of the Property Trustee, unless it shall be proven that
the Property Trustee was negligent in ascertaining the pertinent
facts.
(f) The Property Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good
faith, in accordance with the direction of the Holders of Trust
Preferred Securities pursuant to Section 513, relating to the
time, method and place of conducting any proceeding for any
remedy available to the Property Trustee, or exercising any trust
or power conferred upon the Property Trustee, under this Trust
Agreement.
(g) No provision of this Trust Agreement shall
require the Property Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights
or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity, satisfactory to
the Property Trustee in its reasonable judgment, against such
risk or liability is not reasonably assured to it.
(h) Notwithstanding anything contained in this Trust
Agreement to the contrary, the duties and responsibilities of the
Property Trustee under this Trust Agreement shall be subject to
the protections, exculpations and limitations on liability
afforded to the Property Trustee under the provisions of the
Trust Indenture Act, including those provisions of such Act
deemed by such Act to be included herein.
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(i) Whether or not therein expressly so provided,
every provision of this Trust Agreement relating to the conduct
or affecting the liability of or affording protection to the
Property Trustee shall be subject to the provisions of this
Section.
Section 802 EVENTS OF DEFAULT; WAIVER. Holders of a
Majority in Liquidation Amount of the Trust Preferred Securities
may, on behalf of the Holders of all the Trust Preferred
Securities, waive any past Event of Default and its consequences,
except a default described in clause (b) or (c) of the definition
of "Event of Default" contained in Section 101, a default in
respect of a covenant or provision which under this Trust
Agreement cannot be modified or amended without the consent of
the Holder of each Outstanding Trust Preferred Security or a
Debenture Event of Default that the Holders of a Majority in
Liquidation Amount of the Trust Preferred Securities would not be
entitled to waive pursuant to Section 513(b). Upon such waiver,
any such Event of Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for
every purpose of this Trust Agreement, but no such waiver shall
extend to any subsequent or other default or Event of Default or
impair any right consequent therefrom.
Section 803 CERTAIN NOTICES.
(a) Within five Business Days after the occurrence of any
default hereunder of which the Property Trustee has knowledge
(within the meaning of Section 804(h) hereof), the Property
Trustee shall give notice thereof to the Holders in the manner
and to the extent required to do so by the Trust Indenture Act,
unless such default shall have been cured or waived; provided,
however, that in the case of any default of the character
specified in clause (d) under the subheading "Event of Default"
in Section 101, no such notice to Holders shall be given until at
least 60 days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which is, or
after notice or lapse of time, or both, would become, an Event of
Default.
(b) Within five Business Days after the receipt of
notice of the Depositor's exercise of its right to defer the
payment of interest on the [Subordinated] Debentures pursuant to
the Indenture, the Property Trustee shall transmit, in the manner
and to the extent provided in Section 1008, notice of such
exercise to the Holders and the Administrators, unless such
exercise shall have been revoked.
Section 804 CERTAIN RIGHTS OF PROPERTY TRUSTEE. Subject to
the provisions of Section 801 and to the applicable provisions of
the Trust Indenture Act:
(a) the Property Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Depositor mentioned
herein shall be sufficiently evidenced by an Officer's
Certificate, or as otherwise expressly provided herein, and
any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Trust Agreement
the Property Trustee shall deem it desirable that a matter
be proved or established prior to taking, suffering or
omitting any action hereunder, the Property Trustee (unless
other evidence be herein
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specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officer's Certificate,
(d) the Property Trustee may consult with counsel and the
advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon;
(e) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Trust Agreement at the request or direction of any Holder
pursuant to this Trust Agreement, unless such Holder shall
have offered to the Property Trustee reasonable security or
indemnity against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or
direction;
(f) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document, but the Property Trustee, in its
discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the
Property Trustee shall determine to make such further
inquiry or investigation, it shall (subject to applicable
legal requirements) be entitled to examine, during normal
business hours, the books, records and premises of the Trust
and the Depositor, personally or by agent or attorney;
(g) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the
Property Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed
with due care by it hereunder; and
(h) the Property Trustee shall not be charged with knowledge
of any default or Event of Default unless either (1) a
Responsible Officer of the Property Trustee shall have
actual knowledge of the default or Event of Default or (2)
written notice of such default or Event of Default (which
shall state that such notice is a "Notice of Default" or a
"Notice of an Event of Default" hereunder, as the case may
be) shall have been given to the Property Trustee by the
Depositor, any Administrator, any other obligor on Trust
Preferred Securities or by any Holder of Trust Preferred
Securities.
Section 805 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES. The recitals contained herein and in the Trust Securities
Certificates shall be taken as the statements of the Trust, and
the Trustees and the Administrators do not assume any
responsibility for their correctness. The Trustees and the
Administrators shall not be accountable for the use or
application by the Depositor of the proceeds of the
[Subordinated] Debentures.
Section 806 MAY HOLD SECURITIES. Except as provided in the
definition of the term "Outstanding" in Article I, the
Administrators, any Trustee or any other agent of any Trustee or
the Trust, in its individual or any other capacity, may become
the owner or pledgee of Trust Securities and, subject to Sections
809 and 814, may otherwise deal with the Trust with the same
rights it would have if it were not an Administrator, Trustee or
such other agent.
Section 807 COMPENSATION; INDEMNITY. The Depositor, as
borrower, shall
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(a) pay to the Trustees from time to time reasonable
compensation for all services rendered by them hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, reimburse
the Trustees upon request for all reasonable expenses,
disbursements and advances reasonably incurred or made by the
Trustees in accordance with any provision of this Trust
Agreement, including the costs of collection (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except to the extent that any such expense,
disbursement or advance may be attributable to its negligence,
willful misconduct or bad faith; and
(c) indemnify and hold harmless each Trustee and each
Administrator (each referred to herein as an "Indemnified
Person") from and against any and all losses, demands, claims,
liabilities, causes of action or expenses (including reasonable
attorney's fees and expenses) incurred by it arising out of or in
connection with the acceptance or administration of the trust or
trusts hereunder or the performance of its duties hereunder
(including the reasonable costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder), except to
the extent any such loss, demand, claim, liability, cause of
action or expense may be attributable to its negligence, willful
misconduct or bad faith, and assume the defense of such
Indemnified Person with counsel acceptable to such Indemnified
Person, unless such Indemnified Person shall have been advised by
counsel that there may be one or more legal defenses available to
it which are different from or additional to those available to
the Depositor.
No Trustee may claim any Lien on any Trust Property as a
result of any amount due pursuant to this Section.
When a Trustee incurs expenses or renders services in
connection with an Event of Default specified in clause (e) under
the subheading "Event of Default" in Section 101, the expenses
(including the reasonable charges and expenses of its counsel)
and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or State
bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive termination of
this Trust Agreement.
Section 808 TRUSTEES REQUIRED; ELIGIBILITY OF TRUSTEES AND
ADMINISTRATORS.
(a) There shall at all times be a Property Trustee hereunder
with respect to the Trust Securities. The Property Trustee shall
be
(i) a corporation organized and doing business under the
laws of the United States, any State or Territory thereof
or the District of Columbia, authorized under such laws
to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 and subject
to supervision or examination by Federal or State
authority, or
(ii) if and to the extent permitted by the Commission by
rule, regulation or order upon application, a corporation
or other Person organized and doing business under the
laws of a foreign government, authorized under such laws
to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 or the Dollar
equivalent of the applicable foreign currency and subject
to supervision or
40
examination by authority of such foreign government or a
political subdivision thereof substantially equivalent to
supervision or examination applicable to United States
institutional trustees,
and, in either case, qualified and eligible under this Article
VIII and the Trust Indenture Act. If such corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of such supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time the Property Trustee shall cease to be
eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect
hereinafter specified in this Article VIII.
(b) There shall at all times be one or more
Administrators hereunder. Each Administrator shall be either a
natural person who is at least 21 years of age or a legal entity
that shall act through one or more persons authorized to bind
that entity. An employee, officer or Affiliate of the Depositor
may serve as an Administrator.
(c) There shall at all times be a Delaware Trustee.
The Delaware Trustee shall either be (i) a natural person who is
at least 21 years of age and resident of the State of Delaware
or (ii) a legal entity with its principal lace of business in the
State of Delaware and that otherwise meets the requirements of
applicable Delaware law that shall act through one or more
persons authorized to bind such entity.
Section 809 CONFLICTING INTERESTS.
(a) If the Property Trustee has or shall acquire a
conflicting interest within the meaning of the Trust Indenture
Act, the Property Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Trust Agreement.
(b) The Guarantee, the Indenture, the Guarantee
Agreement dated as of ______________ between the Depositor and
____________, as guarantee trustee, relating to Great Plains
Energy Capital Trust __, and the Amended and Restated Trust
Agreement dated as of _________________ among the Depositor, as
depositor, ______________________, as property trustee,
_________________________, as Delaware trustee and the
administrators named therein, relating to Great Plains Energy
Capital Trust __, shall be deemed to be sufficiently described in
this Trust Agreement for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
Section 810 CO-TRUSTEES AND SEPARATE TRUSTEE. At any time
or times, for the purpose of meeting the legal requirements of
any applicable jurisdiction, the Depositor and the Property
Trustee shall have power to appoint, and, upon the written
request of the Property Trustee or of the Holders of at least
thirty-three per centum (33%) in Liquidation Amount of the Trust
Securities then Outstanding, the Depositor and the Administrators
shall for such purpose join with the Property Trustee in the
execution and delivery of all instruments and agreements
necessary or proper to appoint, one or more Persons approved by
the Property Trustee either to act as co-trustee, jointly with
the Property Trustee, or to act as separate trustee, in either
case with such powers as may be provided in the instrument of
appointment, and to vest in such Person or persons, in the
capacity aforesaid, any property, title, right or power deemed
necessary or desirable, subject to the other provisions of this
Section. If the Depositor or the Administrators do not join in
such appointment within 15 days after the receipt by them of a
41
request so to do, or if an Event of Default shall have occurred
and be continuing, the Property Trustee alone shall have power to
make such appointment.
Should any written instrument or instruments from the
Depositor be required by any co-trustee or separate trustee so
appointed to more fully confirm to such co-trustee or separate
trustee such property, title, right or power, any and all such
instruments shall, on request, be executed, acknowledged and
delivered by the Depositor.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject
to the following conditions:
(a) the Trust Securities Certificates shall be authenticated
and delivered, and all rights, powers, duties and
obligations hereunder in respect of the custody of
securities, cash and other personal property held by, or
required to be deposited or pledged with, the Property
Trustee hereunder, shall be exercised solely, by the
Property Trustee;
(b) the rights, powers, duties and obligations hereby
conferred or imposed upon the Property Trustee in respect of
any property covered by such appointment shall be conferred
or imposed upon and exercised or performed either by the
Property Trustee or by the Property Trustee and such co-
trustee or separate trustee jointly, as shall be provided in
the instrument appointing such co-trustee or separate
trustee, except to the extent that under any law of any
jurisdiction in which any particular act is to be performed,
the Property Trustee shall be incompetent or unqualified to
perform such act, in which event such rights, powers, duties
and obligations shall be exercised and performed by such co-
trustee or separate trustee;
(c) the Property Trustee at any time, by an instrument in
writing executed by it, with the concurrence of the
Depositor, may accept the resignation of or remove any co-
trustee or separate trustee appointed under this Section,
and, if a Debenture Event of Default shall have occurred and
be continuing, the Property Trustee shall have power to
accept the resignation of, or remove, any such co-trustee or
separate trustee without the concurrence of the Depositor.
Upon the written request of the Property Trustee, the
Depositor shall join with the Property Trustee in the
execution and delivery of all instruments and agreements
necessary or proper to effectuate such resignation or
removal. A successor to any co-trustee or separate trustee
so resigned or removed may be appointed in the manner
provided in this Section;
(d) no co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the
Property Trustee, or any other such trustee hereunder; and
(e) any Act of Holders delivered to the Property Trustee
shall be deemed to have been delivered to each such co-
trustee and separate trustee.
Section 811 RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR.
(a) No resignation or removal of any Trustee (the "Relevant
Trustee") and no appointment of a successor Trustee pursuant to
this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the
applicable requirements of Section 812.
(b) A Trustee may resign at any time by giving
written notice thereof to the Depositor. If the instrument of
acceptance by a successor Trustee required by Section 812 shall
not have
42
been delivered to the Relevant Trustee within 30 days after the
giving of such notice of resignation, the Relevant Trustee may
petition any court of the State of Delaware for the appointment
of a successor Trustee.
(c) The Property Trustee or the Delaware Trustee may
be removed at any time by Act of the Holders of at least a
Majority in Liquidation Amount of the Trust Preferred Securities
delivered to the Relevant Trustee (in its individual capacity and
on behalf of the Trust) and to the Depositor.
(d) If at any time:
(1) a Trustee shall fail to comply with Section 809 after
written request therefor by the Depositor or by any
Holder who has been a bona fide Holder for at least six
months, or
(2) a Trustee shall cease to be eligible under Section
808 and shall fail to resign after written request
therefor by the Depositor or by any such Holder, or
(3) a Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the
Relevant Trustee or of its property shall be appointed or
any public officer shall take charge or control of the
Relevant Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (x) the Depositor by a Board Resolution
may remove the Relevant Trustee or (y) any Holder who has been a
bona fide Holder for at least six months may, on behalf of
himself and all others similarly situated, petition any court of
the State of Delaware for the removal of the Relevant Trustee and
the appointment of a successor Relevant Trustee.
(e) If a Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
any Trustee for any cause (other than as contemplated in clause
(y) in subsection (d) of this Section), the Depositor, by a Board
Resolution, shall promptly appoint a successor Relevant Trustee
and shall comply with the applicable requirements of Section 812.
If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor
Relevant Trustee shall be appointed by Act of the Holders of a
Majority in Liquidation Amount of the Trust Preferred Securities
then Outstanding delivered to the Depositor and the retiring
Trustee, the successor Relevant Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 812, become the
successor Relevant Trustee and to that extent supersede the
successor Relevant Trustee appointed by the Depositor. If no
successor Relevant Trustee shall have been so appointed by the
Depositor or the Holders and accepted appointment in the manner
required by Section 812, any Holder who has been a bona fide
Holder of a Trust Preferred Security for at least six months may,
on behalf of itself and all others similarly situated, petition
any court of the State of Delaware for the appointment of a
successor Relevant Trustee.
(f) So long as no event which is, or after notice or
lapse of time, or both, would become, an Event of Default shall
have occurred and be continuing, and except with respect to a
Trustee appointed by Act of the Holders of a Majority in
Liquidation Amount of the Outstanding Trust Preferred Securities
pursuant to subsection (e) of this Section, if the Depositor
shall have delivered to the Relevant Trustee (i) a Board Resolution
appointing a successor Relevant Trustee, effective as of a date
specified therein, and (ii) an instrument of acceptance of such
appointment, effective as of such date, by such successor
Relevant Trustee in accordance with
43
Section 812, the Relevant Trustee shall be deemed to have
resigned as contemplated in subsection (b) of this Section, the
successor Relevant Trustee shall be deemed to have been
appointed by the Depositor pursuant to subsection (e) of this
Section and such appointment shall be deemed to have been
accepted as contemplated in Section 812, all as of such date, and
all other provisions of this Section and Section 812 shall be
applicable to such resignation, appointment and acceptance except
to the extent inconsistent with this subsection (f).
(g) The Depositor or, should the Depositor fail so to
act promptly, the successor Relevant Trustee, at the expense of
the Depositor, shall give notice of each resignation and each
removal of any Trustee and each appointment of a successor
Relevant Trustee by mailing written notice of such event by first-
class mail, postage prepaid, to al Holders of Trust Preferred
Securities as their names and addresses appear in the Securities
Register. Each notice shall include the name of the successor
Relevant Trustee and the address of its corporate trust office.
Section 812 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor
Relevant Trustee, every such successor Relevant Trustee so
appointed with respect to the Trust Securities and the Trust
shall execute, acknowledge and deliver to the Depositor and to
the retiring Relevant Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the
retiring Relevant Trustee shall become effective and such
successor Relevant Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Relevant Trustee; but, on the
request of the Depositor or the successor Relevant Trustee, such
retiring Relevant Trustee shall, upon payment of all sums owed to
it, execute and deliver an instrument transferring to such
successor Relevant Trustee all the rights, powers and trusts of
the retiring Relevant Trustee and shall duly assign, transfer and
deliver to such successor Relevant Trustee all property and money
held by such retiring Relevant Trustee
hereunder with respect to the Trust Securities and the Trust.
(b) Upon request of any such successor Relevant
Trustee, the Depositor shall execute any instruments which fully
vest in and confirm to such successor Relevant Trustee all such
rights, powers and trusts referred to in subsection (a) of this
Section.
(c) No successor Relevant Trustee shall accept its
appointment unless at the time of such acceptance such successor
Relevant Trustee shall be qualified and eligible under this
Article VIII.
Section 813 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS. Any corporation into which the Property Trustee or
the Delaware Trustee may be merged or converted or with which it may
be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which such Relevant Trustee shall be
a party, or any corporation succeeding to all or substantially all the
corporate trust business of such Relevant Trustee, shall be the
successor of the Relevant Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this
Article VIII, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any
Trust Securities shall have been authenticated, but not
delivered, by the Relevant Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Trust
Securities so authenticated with the same effect as if such
successor Relevant Trustee had itself authenticated such Trust
Securities.
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Section 814 PREFERENTIAL COLLECTION OF CLAIMS AGAINST
DEPOSITOR OR TRUST. If the Property Trustee shall be or become a
creditor of the Depositor or any other obligor upon the Trust
Securities (other than by reason of a relationship described in
Section 311(b) of the Trust Indenture Act), the Property Trustee
shall be subject to any and all applicable provisions of the
Trust Indenture Act regarding the collection of claims against
the Depositor or such other obligor. For purposes of Section
311(b) of the Trust Indenture Act:
(a) the term "cash transaction" means any transaction in
which full payment for goods or securities sold is made
within seven days after delivery of the goods or securities
in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand;
(b) the term "self-liquidating paper" means any draft, ▇▇▇▇
of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Depositor for the purpose of
financing the purchase, processing, manufacturing, shipment,
storage or sale of goods, wares or merchandise and which is
secured by documents evidencing title to, possession of, or
a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods,
wares or merchandise previously constituting the security,
provided the security is received by the Property Trustee
simultaneously with the creation of the creditor
relationship with the Depositor arising from the making,
drawing, negotiating or incurring of the draft, ▇▇▇▇ of
exchange, acceptance or obligation.
Section 815 TRUSTEE MAY FILE PROOFS OF CLAIM. In case of
the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Trust or any other obligor
upon the Trust Securities or the property of the Trust or of such
other obligor or their creditors, the Property Trustee
(irrespective of whether any Distributions on the Trust
Securities shall then be due and payable as therein expressed or
by declaration or otherwise and irrespective of whether the
Property Trustee shall have made any demand on the Trust for the
payment of overdue Distributions) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Trust
Securities and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the
Property Trustee (including any claim for amounts due to the
Property Trustee under Section 807) and of the Holders
allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute
the same, and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder
to make such payments to the Property Trustee and, in the
event that the Property Trustee shall consent to the making
of such payments directly to the Holders, to pay to the
Property Trustee any amounts due it under Section 807.
Nothing herein contained shall be deemed to authorize the
Property Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Trust Securities or the
rights of any Holder thereof or to authorize the Property Trustee
to vote in respect of the claim of any Holder in any such
proceeding.
Section 816 REPORTS BY PROPERTY TRUSTEE.
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(a) Not later than _________ of each year commencing with
___________, 20__, the Property Trustee shall transmit to all
Holders in accordance with Section 1008, and to the Depositor, a
brief report dated as of the immediately preceding ________
concerning the Property Trustee and its actions under this Trust
Agreement if and as may be required pursuant to Section 313(a) of
the Trust Indenture Act.
(b) In addition the Property Trustee shall transmit
to Holders such reports concerning the Property Trustee and its
actions under this Trust Agreement as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided
pursuant thereto.
(c) A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Property Trustee
with the Depositor.
Section 817 REPORTS TO THE PROPERTY TRUSTEE. The Depositor
and the Administrators on behalf of the Trust shall provide to
the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and
the compliance certificate required by Section 314(a) of the
Trust Indenture Act in the form, in the manner and at the times
required by Section 314 of the Trust Indenture Act. The Depositor
and the Administrators shall annually file with the Property
Trustee a certificate specifying whether such Person is in
compliance with all the terms and covenants applicable to such
Person hereunder, such compliance certificate to be delivered
annually on or before ________________ of each year beginning
in ________________.
Section 818 EVIDENCE OF COMPLIANCE WITH CONDITIONS
PRECEDENT. Each of the Depositor and the Administrators on behalf
of the Trust shall provide to the Property Trustee such evidence
of compliance with any conditions precedent, if any, provided for
in this Trust Agreement that relate to any of the matters set forth
in Section 314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given by an officer pursuant to Section 314(c)(1)
of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
Section 819 NUMBER OF TRUSTEES.
(a) The number of Trustees shall be two. The Property
Trustee and the Delaware Trustee may be the same Person, in which
case, the number of Trustees may be one.
(b) If a Trustee ceases to hold office for any
reason, a vacancy shall occur. The vacancy shall be filled with
an Trustee appointed in accordance with Section 811.
(c) The death, resignation, retirement, removal,
bankruptcy, incompetence or incapacity to perform the duties of
an Trustee shall not operate to dissolve, terminate or annul the
Trust or terminate this Trust Agreement.
Section 820 DELEGATION OF POWER.
(a) Any Administrator may, by power of attorney consistent
with applicable law, delegate to any other natural person over
the age of 21 his or her power for the purpose of executing any
documents contemplated in Section 207(a) or making any
governmental filing; and
(b) The Administrators shall have power to delegate
from time to time to such of their number the doing of such
things and the execution of such instruments either in the name
of the Trust or the names of the Administrators or otherwise as
the Administrators may deem
46
expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of this Trust
Agreement.
Section 821 APPOINTMENT OF ADMINISTRATORS.
(a) The Administrators shall be appointed by the Holders of
a Majority in Liquidation Amount of the Trust Common Securities
and may be removed by the Holders of a Majority in Liquidation
Amount of the Trust Common Securities or may resign at any time.
Upon any resignation or removal, the Depositor shall appoint a
successor Administrator. Each Administrator shall execute this
Trust Agreement thereby agreeing to comply with, and be legally
bound by, all of the terms, conditions and provisions of this
Trust Agreement. If at any time there is no Administrator, the
Property Trustee or any Holder who has been a Holder of Trust
Securities for at least six months may petition any court of
competent jurisdiction for the appointment of one or more
Administrators.
(b) Whenever a vacancy in the number of
Administrators shall occur, until such vacancy is filled by the
appointment of an Administrator in accordance with this Section
821, the Administrators in office, regardless of their number
(and notwithstanding any other provision of this Agreement),
shall have all the powers granted to the Administrators and shall
discharge all the duties imposed upon the Administrators by this
Trust Agreement.
(c) Notwithstanding the foregoing, or any other
provision of this Trust Agreement, in the event any Administrator
who is a natural person dies or becomes, in the opinion of the
Holders of a Majority in Liquidation Amount of the Trust Common
Securities, incompetent, or incapacitated, the vacancy created by
such death, incompetence or incapacity may be filled by the
remaining Administrators, if there were at least two of them
prior to such vacancy, and by the Depositor, if there were not
two such Administrators immediately prior to such vacancy (with
the successor in each case being a Person who satisfies the
eligibility requirement for Administrators set forth in Section 808).
Section 822 DELAWARE TRUSTEE.
(a) Notwithstanding any other provision of this Trust
Agreement, the Delaware Trustee shall not be entitled to exercise
any powers, nor shall the Delaware Trustee have any of the duties
and responsibilities of the Administrators or the Property
Trustee described in this Trust Agreement. The Delaware Trustee
shall be a trustee for the sole and limited purpose of fulfilling
the requirements of Section 3807 of the Delaware Business Trust
Act.
(b) It is expressly understood and agreed by the
parties hereto that in fulfilling its obligations as Delaware
Trustee hereunder on behalf of the Trust (i) any agreements or
instruments executed and delivered by__________________________
are executed and delivered not in its individual capacity but
solely as Delaware Trustee under this Trust Agreement in the
exercise of the powers and authority conferred and vested in it,
(ii) each of the representations, undertakings and agreements herein
made on the part of the Trust is made and intended not as
representations, warranties, covenants, undertakings and agreements
by _____________________________ in its individual capacity but
is made and intended for the purpose of binding only the rust,
and (iii) under no circumstances shall _________________
_________________________________ be personally liable for the
payment of any indebtedness or expenses of the Trust or be liable
for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Trust under this
Trust Agreement, except if such breach or failure is due to any
gross negligence or willful misconduct of the Delaware Trustee.
47
ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER
Section 901 DISSOLUTION UPON EXPIRATION DATE. Unless
earlier dissolved, pursuant to an Early Termination Event, the
Trust shall automatically dissolve on ____________________ (the
"Expiration Date"), and thereafter the Trust Property shall be
distributed in accordance with Section 904.
Section 902 EARLY DISSOLUTION. The first to occur of any of
the following events is an "Early Termination Event," upon the
occurrence of which the Trust shall dissolve:
(a) the occurrence of the appointment of a receiver
or other similar official in any liquidation, insolvency or
similar proceeding with respect to the Depositor or all or
substantially all of its property, or a court or other
governmental agency shall enter a decree or order relating to the
Depositor for relief in a voluntary or involuntary case under
Chapter 7 or Chapter 11 of the United States Bankruptcy Code or
any other similar State or Federal law now or hereafter in effect
and such decree or order shall remain unstayed and undischarged
for a period of 60 days, unless the Depositor shall transfer the
Trust Common Securities as provided by Section 511, in which
case this provision shall refer instead to any such successor
Holder of the Trust Common Securities;
(b) the written direction to the Property Trustee
from the Holder of the Trust Common Securities at any time to
dissolve the Trust and to distribute the [Subordinated]
Debentures to Holders in exchange for the Trust Preferred
Securities (which direction, subject to Section 904(a), is
optional and wholly within the discretion of the Holder of the
Trust Common Securities);
(c) the redemption of all of the Trust Preferred
Securities in connection with the repayment or redemption of all
the [Subordinated] Debentures; and
(d) the entry of an order for dissolution of the
Trust by a court of competent jurisdiction.
Section 903 TERMINATION. As soon as is practicable after
the occurrence of an event referred to in Section 901 or 902, and
upon the completion of the winding-up and liquidation of the
Trust, the Administrators and the Trustees (each of whom is
hereby authorized to take such action) shall file a certificate
of cancellation with the Secretary of State of the State of
Delaware terminating the Trust and, upon such filing, the
respective obligations and responsibilities of the Trustees, the
Administrators and the Trust created and continued hereby shall
terminate, except as otherwise required by law or this Trust
Agreement.
Section 904 LIQUIDATION.
(a) If an Early Termination Event specified in clause (a), (b) or
(d) of Section 902 occurs or upon the Expiration Date, the Trust
shall be wound-up and liquidated by the Property Trustee as
expeditiously as the Property Trustee determines to be possible
by distributing, after paying or making reasonable provision to
pay all claims and obligations of the Trust in accordance with
Section 3808(e) of the Delaware Business Trust Act, to each
Holder a Like Amount of [Subordinated] Debentures, subject to
Section 904(d). Notice of liquidation shall be given by the
Property Trustee by first-class mail, postage prepaid, mailed not
later than 15 nor more than 45
48
days prior to the Liquidation Date to each Holder of Trust
Securities at such Holder's address appearing in the Securities
Register. All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that, from and after the Liquidation Date, the
Trust Securities will no longer be deemed to be
Outstanding and any Trust Securities Certificates not
surrendered for exchange will be deemed to represent a
Like Amount of [Subordinated] Debentures; and
(iii) provide such information with respect to the
mechanics by which Holders may exchange Trust Securities
Certificates for [Subordinated] Debentures, or if Section
904(d) applies receive a Liquidation Distribution, as the
Administrators or the Property Trustee shall deem
appropriate.
(b) Except where Section 902(c) or 904(d) applies, in
order to effect the liquidation of the Trust and distribution of
the [Subordinated] Debentures to Holders, the Property Trustee
shall establish a record date for such distribution (which shall
be not more than 30 days prior to the Liquidation Date) and,
either itself acting as exchange agent or through the appointment
of a separate exchange agent, shall establish such procedures as it
shall deem appropriate to effect the distribution of
[Subordinated] Debentures in exchange for the Outstanding Trust
Securities Certificates.
(c) Except where Section 902(c) or 904(d) applies,
after the Liquidation Date, (i) the Trust Securities will no
longer be deemed to be Outstanding, (ii) the Depositary for the
Trust Preferred Securities or its nominee, as the registered
Holder of the Global Trust Preferred Securities Certificates,
shall receive a registered global certificate or certificates
representing the [Subordinated] Debentures to be delivered upon
such distribution with respect to Trust Preferred Securities held
by the Depositary or its nominee, and, (iii) any Trust Securities
Certificates not held by the Depositary for the Trust Preferred
Securities or its nominee as specified in clause (ii) above will
be deemed to represent [Subordinated] Debentures having a
principal amount equal to the stated Liquidation Amount of the
Trust Securities represented thereby and bearing accrued and
unpaid interest in an amount equal to the accumulated and unpaid
Distributions on such Trust Securities until such certificates
are presented to the Securities Registrar for transfer or
reissuance.
(d) If, notwithstanding the other provisions of this
Section 904, whether because of an order for dissolution entered
by a court of competent jurisdiction or otherwise, distribution
of the [Subordinated] Debentures is not practical, or if any
Early Termination Event specified in clause (c) of Section 902
occurs, the Trust shall be dissolved, and the Trust Property
shall be liquidated, by the Property Trustee in such manner as the
Property Trustee determines. In such event, on the date of the
dissolution of the Trust, Holders will be entitled to receive out
of the assets of the Trust available for distribution to Holders,
after paying or making reasonable provision to pay all claims and
obligations of the Trust in accordance with Section 3808(e) of
the Delaware Business Trust Act, an amount equal to the aggregate of
Liquidation Amount per Trust Security plus accumulated and unpaid
Distributions thereon to the date of payment (such amount being
the "Liquidation Distribution"). If, upon any such dissolution,
the Liquidation Distribution can be paid only in part because the
Trust has insufficient assets available to pay in full the
aggregate Liquidation Distribution, then, subject to the next
succeeding sentence, the amounts payable by the Trust on the
Trust Securities shall be paid on a pro rata basis (based
upon Liquidation Amounts). The Holders of the Trust Common
Securities will be entitled to receive Liquidation Distributions
upon any such dissolution, pro rata (determined as aforesaid)
49
with Holders of Trust Preferred Securities, except that, if a
Debenture Event of Default has occurred and is continuing, the
Trust Preferred Securities shall have a priority over the Trust
Common Securities as provided in Section 403.
Section 905 MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR
REPLACEMENTS OF THE TRUST. The Trust may not merge with or into,
consolidate, amalgamate, or be replaced by, or convey,
transfer or lease its properties and assets substantially as
an entirety to, any entity, except pursuant to this Section
905 or Section 904. At the request of the Holders of the
Trust Common Securities, and with the consent of the Holders of
at least a Majority in Liquidation Amount of the Trust Preferred
Securities, but without the consent of the Trustees, the Trust
may merge with or into, consolidate, amalgamate, or be
replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to a trust organized as such
under the laws of any state; provided, however, that (i) such
successor entity either (a) expressly assumes all of the obligations
of the Trust with respect to the Trust Preferred Securities or
(b) substitutes for the Trust Preferred Securities other securities
having substantially the same terms as the Trust Preferred
Securities (the "Successor Trust Preferred Securities") so
long as the Successor Trust Preferred Securities have the same
priority as the Trust Preferred Securities with respect to
distributions and payments upon liquidation, redemption and
otherwise; (ii) a trustee of such successor entity possessing the
same powers and duties as the Property Trustee is
appointed to hold the [Subordinated] Debentures; (iii) the Trust
Preferred Securities or any Successor Trust Preferred Securities
are listed or quoted, or any Successor Trust Preferred Securities
will be listed or quoted upon notification of issuance, on any
national securities exchange or with another organization on
which Trust Preferred Securities are then listed or quoted; (iv)
such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the
rights, preferences and privileges of the holders of the Trust
Preferred Securities (including any Successor Trust Preferred
Securities) in any material respect; (v) such successor entity
has a purpose substantially identical to that of the Trust; (vi)
prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, the Property Trustee has received
an Opinion of Counsel from independent counsel experienced in
such matters to the effect that (a) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights preferences and privileges of the
holders of the Trust Preferred Securities (including any
Successor Trust Preferred Securities) in any material respect,
and (b) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Trust nor
such successor entity will be required to register as an
"investment company" under the Investment Company Act; and (vii)
the Depositor or any permitted transferee to whom it has
transferred the Trust Common Securities hereunder owns all of the
Trust Common Securities of such successor entity and guarantees
the obligations of such successor entity under the Successor
Trust Preferred Securities at least to the extent provided by the
Guarantee. Notwithstanding the foregoing, the Trust shall not,
except with the consent of Holders of 100% in Liquidation Amount
of the Trust Preferred Securities, consolidate, amalgamate, merge
with or into, or be replaced by or convey, transfer or lease its
properties and assets substantially as an entirety to, any other
entity or permit any other entity to consolidate, amalgamate,
merge with or into, or replace it if such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease
would cause the Trust or the successor entity to be taxable other
than as a grantor trust for United States Federal income tax
purposes. Any merger or similar agreement shall be executed by
the Administrators on behalf of the Trust.
50
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 1001 LIMITATIONS OF RIGHTS OF HOLDERS. Except as
set forth in Section 902, the bankruptcy, dissolution,
termination, death or incapacity of any Person having an
interest, beneficial or otherwise, in Trust Securities shall not
operate to terminate this Trust Agreement, nor entitle the legal
representatives or heirs of such person or any Holder for such
person, to claim an accounting, take any action or bring any
proceeding in any court for a partition or winding-up of the
arrangements contemplated hereby, nor otherwise affect the
rights, obligations and liabilities of the parties hereto or any
of them.
Section 1002 AMENDMENT.
(a) This Trust Agreement may be amended from time to time by
the Property Trustee and the Holders of a Majority in Liquidation
Amount of the Trust Common Securities, without the consent of any
Holder of the Trust Preferred Securities (i) to cure any
ambiguity, correct or supplement any provision herein which may
be inconsistent with any other provision herein, or
to make any other provisions with respect to matters or questions
arising under this Trust Agreement; provided, however, that such
amendment shall not adversely affect in any material respect the
interests of any Holder; (ii) to facilitate the tendering,
remarketing and settlement of the trust preferred securities, as
herein contemplated (iii) to modify, eliminate or add to any
provisions of this Trust Agreement to such extent as shall be
necessary to ensure that the Trust will not be taxable other than
as a grantor trust for United States Federal income tax purposes
at any time that any Trust Securities are Outstanding or to
ensure that the Trust will not be required to register as an
investment company under the Investment Company Act or (iv) in
accordance with the requirements of Section 812.
(b) Except as provided in Section 1002(c) hereof, any
provision of this Trust Agreement may be amended by the Property
Trustee and the Holders of a Majority in Liquidation Amount of
the Trust Common Securities with (i) the consent of Holders of at
least a Majority in Liquidation Amount of the Trust Preferred
Securities and (ii) receipt by the Trustees of an Opinion of
Counsel to the effect that such amendment or the exercise of any
power granted to the Trustees in accordance with such amendment
will not affect the Trust's being taxable as a grantor trust for
United States Federal income tax purposes or the Trust's
exemption from status of an "investment company" under the
Investment Company Act.
(c) In addition to and notwithstanding any other
provision in this Trust Agreement, without the consent of each
affected Holder (such consent being obtained in accordance with
Section 603 or 606 hereof), this Trust Agreement may not be
amended to (i) change the amount or timing of any Distribution on
the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust
Securities as of a specified date or (ii) restrict the right of
a Holder to institute suit for the enforcement of any such
payment on or after such date.
(d) Notwithstanding any other provisions of this
Trust Agreement, no Trustee shall enter into or consent to any
amendment to this Trust Agreement which would cause the Trust to
fail or cease to qualify for the exemption from status as an
"investment company" under the Investment Company Act or be
taxable other than as a grantor trust for United States Federal
income tax purposes.
51
(e) Notwithstanding anything in this Trust Agreement
to the contrary, without the consent of the Depositor and the
Administrators, this Trust Agreement may not be amended in a
manner which imposes any additional obligation on the Depositor
or the Administrators.
(f) In the event that any amendment to this Trust
Agreement is made, the Administrators or the Property Trustee
shall promptly provide to the Depositor a copy of such amendment.
(g) Neither the Property Trustee nor the Delaware
Trustee shall be required to enter into any amendment to this
Trust Agreement which affects its own rights, duties or
immunities under this Trust Agreement or otherwise. The Property
Trustee shall be entitled to receive an Opinion of Counsel and an
Officers' Certificate stating that any amendment to this Trust
Agreement is in compliance with this Trust Agreement.
(h) The Administrators shall give notice to the
Holders of each amendment to this Trust Agreement; provided,
however, that any failure by the Administrators to deliver, or
any defect in, such notice, shall not affect the validity or
effectiveness of any such amendment.
Section 1003 SEPARABILITY. In case any provision in this
Trust Agreement or in the Trust Securities Certificates shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
Section 1004 GOVERNING LAW.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH
OF THE HOLDERS, THE TRUST, THE DEPOSITOR, THE TRUSTEES AND THE
ADMINISTRATORS SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF DELAWARE AND ALL RIGHTS AND
REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS OF THE STATE OF DELAWARE OR ANY
OTHER JURISDICTION THAT WOULD CALL FOR THE APPLICATION OF THE LAW
OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE; PROVIDED,
HOWEVER, THAT THERE SHALL NOT BE APPLICABLE TO THE HOLDERS, THE
TRUST, THE DEPOSITOR, THE TRUSTEES, THE ADMINISTRATORS OR THIS
TRUST AGREEMENT ANY PROVISION OF THE LAWS (STATUTORY OR COMMON)
OF THE STATE OF DELAWARE PERTAINING TO TRUSTS OTHER THAN THE
DELAWARE BUSINESS TRUST ACT THAT RELATE TO OR REGULATE, IN A MANNER
INCONSISTENT WITH THE TERMS HEREOF (A) THE FILING WITH ANY COURT
OR GOVERNMENTAL BODY OR AGENCY OF TRUSTEE ACCOUNTS OR SCHEDULES
OF TRUSTEE FEES AND CHARGES, (B) AFFIRMATIVE REQUIREMENTS TO POST
BONDS FOR TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (C)
THE NECESSITY FOR OBTAINING COURT OR OTHER GOVERNMENTAL APPROVAL
CONCERNING THE ACQUISITION, HOLDING OR DISPOSITION OF REAL OR
PERSONAL PROPERTY, (D) FEES OR OTHER SUMS PAYABLE TO TRUSTEES,
OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (E) THE ALLOCATION OF
RECEIPTS AND EXPENDITURES TO INCOME OR PRINCIPAL, (F)
RESTRICTIONS OR LIMITATIONS ON THE PERMISSIBLE NATURE, AMOUNT OR
CONCENTRATION OF TRUST INVESTMENTS OR REQUIREMENTS RELATING TO
THE TITLING, STORAGE OR OTHER MANNER OF HOLDING OR INVESTING
TRUST ASSETS OR (G) THE ESTABLISHMENT OF FIDUCIARY OR OTHER
STANDARDS OF R RESPONSIBILITY OR LIMITATIONS ON THE ACTS OR
POWERS OF TRUSTEES THAT ARE INCONSISTENT WITH THE LIMITATIONS OR
LIABILITIES OR AUTHORITIES AND POWERS OF THE TRUSTEES OR THE
ADMINISTRATOR AS SET FORTH OR REFERENCED IN THIS TRUST
AGREEMENT. SECTION 3540 OF TITLE 12 OF THE
52
DELAWARE CODE SHALL NOT APPLY TO THE TRUST. NOTWITHSTANDING THE
FOREGOING, THE IMMUNITIES AND STANDARD OF CARE OF THE PROPERTY
TRUSTEE IN CONNECTION WITH THE ADMINISTRATION OF ITS TRUSTS AND
DUTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
Section 1005 PAYMENTS DUE ON NON-BUSINESS DAY. If the date
fixed for any payment on any Trust Security shall be a day that
is not a Business Day, then such payment need not be made on such
date but may be made on the next succeeding day that is a
Business Day (except as otherwise provided in Section 402(d)),
with the same force and effect as though made on the date fixed
for such payment, and no Distributions shall accumulate on such
unpaid amount for the period after such date.
Section 1006 SUCCESSORS. This Trust Agreement shall be
binding upon and shall inure to the benefit of any successor to
the Depositor, the Trust, the Administrators and any Trustee,
including any successor by operation of law. Except in connection
with a consolidation, merger or sale involving the Depositor that
is permitted under Article XII of the Indenture and pursuant to
which the assignee agrees in writing to perform the Depositor's
obligations hereunder, the Depositor shall not assign its
obligations hereunder.
Section 1007 HEADINGS. The Article and Section headings are
for convenience only and shall not affect the construction of
this Trust Agreement.
Section 1008 REPORTS, NOTICES AND DEMANDS. Any report,
notice, demand or other communication that by any provision of
this Trust Agreement is required or permitted to be given or
served to or upon any Holder or the Depositor may be given or
served in writing by deposit thereof, first class postage
prepaid, in the United States mail, hand delivery or facsimile
transmission, in each case, addressed, (a) in the case of a
Holder of Trust Preferred Securities, to such Holder as such
Holder's name and address may appear on the Securities Register;
and (b) in the case of the Holder of Trust Common Securities or
the Depositor, to _____________________________, Attention:
____________________, Facsimile No.
_____________________ or to such other address as may be
specified in a written notice by the Depositor to the Property
Trustee. Such notice, demand or other communication to or upon a
Holder shall be deemed to have been sufficiently given or made,
for all purposes, upon hand delivery, mailing or transmission.
Such notice, demand or other communication to or upon the
Depositor shall be deemed to have been sufficiently given or made
only upon actual receipt of the writing by the Depositor.
Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be
given or served to or upon the Trust, the Property Trustee, the
Delaware Trustee or, the Administrators shall be given in writing
addressed (until another address is published by the Trust) as
follows: (a) with respect to the Property Trustee to
_________________, _____________________, Attention: Corporate
Trustee Administration Department (b) with respect to the
Delaware Trustee to ___________________, ______________________,
Attention: Corporate Trustee Administration Department; (c) with
respect to the Administrators, to them at the address above for
notices to the Depositor, marked "Attention: Office of the Chief
Financial Officer" and (d) with respect to the Trust to Great Plains
Energy Capital Trust __, c/o Great Plains Energy Incorporated, ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:____________________.
Such notice, demand or other communication to or upon the Trust or
the Property Trustee shall be deemed to have been sufficiently
given or made only upon actual receipt of the writing by the Trust,
the Property Trustee, or such Administrator.
53
Section 1009 AGREEMENT NOT TO PETITION. Each of the
Trustees, the Administrators and the Depositor agree for the
benefit of the Holders that, until at least one year and one day
after the Trust has been terminated in accordance with Article
IX, they shall not file, or join in the filing of, a petition
against the Trust under any bankruptcy, insolvency,
reorganization or other similar law (including, without
limitation, the United States Bankruptcy Code) (collectively,
"Bankruptcy Laws") or otherwise join in the commencement of any
proceeding against the Trust under any Bankruptcy Law. In the
event the Depositor takes action in violation of this Section
1009, the Property Trustee agrees, for the benefit of Holders,
that at the expense of the Depositor, it shall file an answer
with the bankruptcy court or otherwise properly contest the
filing of such petition by the Depositor against the Trust or the
commencement of such action and raise the defense that the
Depositor has agreed in writing not to take such action and
should be estopped and precluded therefrom and such other
defenses, if any, as counsel for the Property Trustee or the
Trust may assert. If any Trustee or Administrator takes action
in violation of this Section 1009, the Depositor agrees,
for the benefit of the Holders, that at the expense of the
Depositor, it shall file an answer with the bankruptcy court or
otherwise properly contest the filing of such petition by
such Person against the Trust or the commencement of such action
and raise the defense that such Person has agreed in writing
not to take such action and should be estopped and
precluded therefrom and such other defenses, if any, as counsel
for the Depositor may assert. The provisions of this Section 1009
shall survive the termination of
this Trust Agreement.
Section 1010 TRUST INDENTURE ACT; CONFLICT WITH TRUST
INDENTURE ACT.
(a) Trust Indenture Act; Application. (i) This Trust
Agreement is subject to the provisions of the Trust Indenture Act
that are required to be a part of this Trust Agreement and shall,
to the extent applicable, be governed by such provisions; (ii) if
and to the extent that any provision of this Trust Agreement
limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such
imposed duties shall control; (iii) if any provision of this
Trust Agreement modifies or excludes any provision of the Trust
Indenture Act which may be so modified or excluded, the latter
provision shall be deemed to apply to this Trust Agreement as so
modified or excluded as the case may be, (iv) for purposes of
this Trust Agreement, the Property Trustee, to the extent
permitted by applicable law and/or the rules and
regulations of the Commission, shall be the only Trustee which is
a trustee for the purposes of the Trust Indenture Act; and (v)
the application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Trust Preferred
Securities and the Trust Common Securities as equity securities
representing undivided beneficial interests in the assets of the
Trust.
(b) Disclosure Information. The disclosure of
information as to the names and addresses of the Holders of Trust
Securities in accordance with Section 312 of the Trust Indenture
Act, regardless of the source from which such information was
derived, shall not be deemed to be a violation of any existing
law or any law hereafter enacted which does not specifically
refer to Section 312 of the Trust Indenture Act, nor shall the
Property Trustee be held accountable by reason of mailing any
material pursuant to a request made under Section 312(b) of the
Trust Indenture Act.
Section 1011 ACCEPTANCE OF TERMS OF TRUST AGREEMENT,
GUARANTEE AND
INDENTURE.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY
INTEREST THEREIN BY OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL
OWNER, WITHOUT
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ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL
CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE HOLDER AND ALL
OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL
THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT, THE GUARANTEE
AND THE INDENTURE, AND THE AGREEMENT TO THE SUBORDINATION
PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND THE INDENTURE,
AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH HOLDER
AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN
THE TRUST AND SUCH HOLDER AND SUCH OTHERS.
* * * *
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but
one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Trust Agreement to be duly executed, all as of the day and year
first above written.
GREAT PLAINS ENERGY INCORPORATED
as Depositor
By:________________________________
Name:
Title:
[Name of Property Trustee],
as Property Trustee, and
not in its individual capacity
By:________________________________
Name:
Title:
[Name of Delaware Trustee],
as Delaware Trustee, and
not in its individual capacity
By:________________________________
Name:
Title:
Agreed to and Accepted by,
___________________________
Name:
Title:
___________________________
Name:
Title:
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EXHIBIT A
[INSERT CERTIFICATE OF TRUST FILED WITH DELAWARE]
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EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE
DEPOSITOR OR AN AFFILIATE OF THE DEPOSITOR
IN COMPLIANCE WITH APPLICABLE LAW AND
SECTION 511 OF THE TRUST AGREEMENT
NUMBER OF TRUST
CERTIFICATE NUMBER COMMON SECURITIES
C-1 _________
($____________ AGGREGATE LIQUIDATION AMOUNT)
CERTIFICATE EVIDENCING TRUST COMMON SECURITIES
OF
GREAT PLAINS ENERGY CAPITAL TRUST __
_________% TRUST COMMON SECURITIES
(LIQUIDATION AMOUNT $______ PER TRUST COMMON SECURITY)
Great Plains Energy Capital Trust __, a statutory business
trust created under the laws of the State of Delaware, (the "Trust"),
hereby certifies that Great Plains Energy Incorporated (the "Holder")
is the registered owner of ______________________(________ ) Trust
Common Securities of the Trust representing undivided beneficial
interests in the assets of the Trust and designated as the Great
Plains Energy Capital Trust _______% Trust Common Securities
(liquidation amount $______ per Trust Common Security) (the
"Trust Common Securities"). Except in accordance with Section 511
of the Trust Agreement (as defined below) the Trust Common
Securities are not transferable and any attempted transfer hereof
other than in accordance therewith shall be void. The designations, rights,
privileges, restrictions, preferences and other terms and
provisions of the Trust Common Securities are set forth in, and
this certificate and the Trust Common Securities represented
hereby are issued and shall in all respects be subject to the
terms and provisions of, the Amended and Restated Trust Agreement
of the Trust, dated as of _______________________, as the same
may be amended from time to time (the "Trust Agreement") among
______________________, as Depositor, ___________________________, as
Property Trustee, ____________________________ , as Delaware Trustee,
the Administrators named therein and the Holders of Trust
Securities, including the designation of the terms of the Trust
Common Securities as set forth therein. The Trust will furnish a
copy of the Trust Agreement to the Holder without charge upon
written request to the Trust at its principal place of business
or registered office.
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Upon receipt of this certificate, the Holder is bound by
the Trust Agreement and is entitled to the benefits thereunder.
Terms used but not defined herein have the meanings set
forth in the Trust Agreement.
IN WITNESS WHEREOF, one of the Administrators of the Trust
has executed this certificate this ___ day of ______________,
200_.
GREAT PLAINS ENERGY CAPITAL TRUST __
By: _______________________________
Name:
Title: Administrator
CERTIFICATE OF AUTHENTICATION:
THIS IS ONE OF THE TRUST COMMON SECURITIES REFERRED TO IN THE
WITHIN MENTIONED TRUST AGREEMENT.
________________________________,
as Property Trustee
By: _____________________________
Name:
Title: [Authorized Officer]
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EXHIBIT C
[IF THE TRUST PREFERRED SECURITIES CERTIFICATE IS TO BE A
GLOBAL TRUST PREFERRED SECURITIES CERTIFICATE, INSERT:] This Trust
Preferred Securities Certificate is a Global Trust Preferred Securities
Certificate within the meaning of the Trust Agreement hereinafter
referred to and is registered in the name of the Depositary or a
nominee of the Depositary. This Trust Preferred Securities
Certificate is exchangeable for Trust Preferred Securities
Certificates registered in the name of a person other than the
Depositary or its nominee only in the limited circumstances
described in the Trust Agreement and may not be transferred
except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary, except in the limited
circumstances described in the Trust Agreement.
Unless this Trust Preferred Securities Certificate is
presented by an authorized representative of The Depositary Trust
Company, a New York corporation ("DTC"), to Great Plains Energy
Capital Trust __ or its agent for registration of transfer,
exchange or payment, and any Trust Preferred Securities
Certificate issued is registered in the name of Cede & Co. or
such other name as is requested by an authorized representative
of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO A PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
NO EMPLOYEE BENEFIT OR OTHER PLAN OR INDIVIDUAL RETIREMENT
ACCOUNT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (EACH,
A "PLAN"), NO ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN
ASSETS" BY REASON OF ANY PLAN'S INVESTMENT IN THE ENTITY (A "PLAN
ASSET ENTITY"), AND NO PERSON INVESTING "PLAN ASSETS" OF ANY
PLAN, MAY ACQUIRE OR HOLD THIS TRUST PREFERRED SECURITIES
CERTIFICATE OR ANY INTEREST HEREIN, UNLESS SUCH PURCHASE OR
HOLDING IS COVERED BY THE EXEMPTIVE RELIEF PROVIDED BY U.S.
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION
("PTCE") 96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE
EXEMPTION WITH RESPECT TO SUCH PURCHASE OR HOLDING. ANY PURCHASER
OR HOLDER OF THIS TRUST PREFERRED SECURITIES CERTIFICATE OR ANY
INTEREST HEREIN THAT IS A PLAN OR A PLAN ASSET ENTITY OR IS
PURCHASING SUCH SECURITIES ON BEHALF OF OR WITH "PLAN ASSETS"
WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING
HEREOF THAT (A) THE PURCHASE AND HOLDING OF THE TRUST PREFERRED
SECURITIES IS COVERED BY THE EXEMPTIVE RELIEF PROVIDED BY PTCE 96-
23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION,
(B) THE DEPOSITOR AND THE ADMINISTRATORS ARE NOT "FIDUCIARIES"
WITHIN THE MEANING OF SECTION 3(21) OF ERISA AND THE REGULATIONS
THEREUNDER, WITH RESPECT TO SUCH PERSON'S INTEREST IN THE TRUST
PREFERRED SECURITIES OR THE [SUBORDINATED] DEBT SECURITIES, AND
(C) IN PURCHASING THE TRUST PREFERRED SECURITIES SUCH PERSON
APPROVES THE PURCHASE OF THE [SUBORDINATED] DEBENTURES AND THE
APPOINTMENT OF THE TRUSTEES.
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CERTIFICATE NUMBER ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇-▇ $_____________
(__________ TRUST PREFERRED SECURITIES)
CUSIP NO. ___________________
CERTIFICATE EVIDENCING TRUST PREFERRED SECURITIES
OF
GREAT PLAINS ENERGY CAPITAL TRUST __
________% TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT $_____ PER TRUST PREFERRED SECURITY)
Great Plains Energy Capital Trust __, a statutory business
trust created under the laws of the State of Delaware (the "Trust"),
hereby certifies that ______________________ (the "Holder") is the
registered owner of _______________________ Dollars ($________) aggregate
liquidation amount of Trust Preferred Securities of the Trust
representing a preferred undivided beneficial interest in the assets of
the Trust and designated as the Great Plains Energy Capital Trust
_________% Trust Preferred Securities (liquidation amount $_______
per Trust Preferred Security) (the "Trust Preferred Securities").
The Trust Preferred Securities are transferable on the books and
records of the Trust, in person or by a duly authorized attorney,
upon surrender of this certificate duly endorsed and in proper
form for transfer as provided in Section 505 of the Trust
Agreement (as defined below). The designations, rights,
privileges, restrictions, preferences and other terms and
provisions of the Trust Preferred Securities are set forth in,
and this certificate and the Trust Preferred Securities represented
hereby are issued and shall in all respects be subject to the terms
and provisions of, the Amended and Restated Trust Agreement of the
Trust, dated as of ______________, as the same may be amended from time
to time (the "Trust Agreement"), among _______________________, as Depositor,
__________________, as Property Trustee, _____________________, as Delaware
Trustee, the Administrators named herein and the Holders of Trust Securities,
including the designation of the terms of the Trust Preferred
Securities as set forth therein. The Holder is entitled to the
benefits of the Guarantee Agreement entered into by Great Plains
Energy Incorporated, a Missouri corporation, as Guarantor, and
__________________________, as Guarantee Trustee, dated as of
___________ (the "Guarantee Agreement"), to the extent provided
therein. The Trust will furnish a copy of the Trust Agreement and
the Guarantee Agreement to the Holder without charge upon written
request to the Trust at its principal place of business or
registered office.
Upon receipt of this certificate, the Holder is bound by
the Trust Agreement and is entitled to the benefits thereunder.
Terms used but not defined herein have the meanings set
forth in the Trust Agreement.
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IN WITNESS WHEREOF, one of the Administrators of the Trust
has executed this certificate this ____ day of _________________.
GREAT PLAINS ENERGY CAPITAL TRUST __
By: ______________________________
Name:
Title: Administrator
ADMINISTRATOR
This is one of the Trust Preferred Securities referred to in the
within mentioned Trust Agreement.
______________________________
as Property Trustee
By:___________________________
Name:
Title: [Authorized Officer]
62
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers
this Trust Preferred Security to:
____________________________________________________________
(Insert assignee's social security or tax identification number)
____________________________________________________________
____________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
___________________________________________________________
___________________________________________________________
agent to transfer this Trust Preferred Securities Certificate on
the books of the Trust. The agent may substitute another to act
for him or her.
Date:________________________
Signature:_________________________________________________
(Sign exactly as your name appears on the other side of this
Trust Preferred Securities Certificate)
The signature(s) should be guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and loan associations
and credit unions with membership in an approved signature
guarantee medallion program), pursuant to Rule 17Ad-15 of the
Securities Exchange Act of 1934.
63