AMENDED AND RESTATED
TRUST AGREEMENT
between
WESTERN RESOURCES, INC., as Depositor
and
WILMINGTON TRUST COMPANY, as Property Trustee,
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
Dated as of __________ __, ______
WESTERN RESOURCES CAPITAL I
WESTERN RESOURCES CAPITAL I
.Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Amended and Restated
Trust Indenture Trust Agreement
Act Section Section
Sections 310(a)(1)............................................. 8.07
(a)(2)............................................. 8.07
(a)(3)............................................. 8.09
(a)(4).. .......................................... Not Applicable
(a)(5)............................................. 8.08
(b)...... ......................................... 8.08
(c)................................................ Not Applicable
Sections 311(a)................................................ 8.13
(b)................................................ 8.13
Sections 312(a)................................................ 5.07
(b)................................................ 5.07
(c)................................................ 5.07
Sections 313 ................................................ 8.14
Sections 314(a)................................................ 8.15
(b)................................................ Not Applicable
(c)(1)............................................. 8.16
(c)(2)............................................. 8.16
(c)(3)............................................. 8.16
(d)................................................ Not Applicable
(e)................................................ 8.16
Sections 315(a)................................................ 8.01
(b)................................................ 8.02, 8.14(b)
(c)................................................ 8.01(a)
(d)................................................ 8.01, 8.03
(e)................................................ 8.03
Sections 316(a)................................................ 6.04
(b)................................................ 5.13
(c)................................................ 6.04
Sections 317(a)(1)............................................. 8.03
(a)(2)............................................. 8.03
(b)................................................ 5.08
Sections 318(a)................................................ 10.09
(b)................................................ 10.09
(c)................................................ 10.09
-------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Trust Agreement.
TABLE OF CONTENTS
Page
ARTICLE I
DEFINED TERMS
Section 1.01. Definitions.................................................. 1
ARTICLE II
ESTABLISHMENT OF THE TRUST
Section 2.01. Name......................................................... 9
Section 2.02. Office of the Property Trustee; Principal Place of Business.. 9
Section 2.03. Initial Contribution of Trust Property; Organizational
Expenses..................................................... 9
Section 2.04. Issuance of the Preferred Securities......................... 9
Section 2.05. Subscription and Purchase of Debentures; Issuance of the
Common Securities............................................ 9
Section 2.06. Declaration of Trust......................................... 9
Section 2.07. Authorization to Enter into Certain Transactions............ 10
Section 2.08. Assets of the Trust......................................... 13
Section 2.09. Title to Trust Property..................................... 13
ARTICLE III
PAYMENT ACCOUNT
Section 3.01. Payment Account............................................ 13
ARTICLE IV
DISTRIBUTIONS; REDEMPTIONS
Section 4.01. Distributions.............................................. 13
Section 4.02. Redemptions................................................ 14
Section 4.03. Subordination of Common Securities......................... 16
Section 4.04. Payment Procedures......................................... 16
Section 4.05. Tax Returns and Reports.................................... 17
Section 4.06. Payment of Taxes, Duties, Etc. of the Trust.................17
ARTICLE V
TRUST SECURITIES CERTIFICATES
Section 5.01. Initial Ownership.......................................... 17
Section 5.02. The Trust Securities Certificates.......................... 17
Section 5.03. Delivery of Trust Securities Certificates.................. 17
Section 5.04. Registration of Transfer and Exchange of Preferred Securities
Certificates............................................... 18
Section 5.05. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates............................................... 18
Section 5.06. Persons Deemed Securityholders............................. 18
Section 5.07. Access to List of Securityholders' Names and Addresses..... 19
Section 5.08. Appointment of Paying Agent................................ 19
TABLE OF CONTENTS (CONT.)
Page
Section 5.09. Book-Entry Preferred Securities Certificates; Common
Securities Certificate...................................... 20
Section 5.10 Notices to Clearing Agency.................................. 20
Section 5.11. Definitive Preferred Securities Certificates................ 21
Section 5.12. Rights of Securityholders................................... 21
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
Section 6.01. Limitations on Voting Rights................................ 22
Section 6.02. Notice of Meetings.......................................... 22
Section 6.03. Meetings of Preferred Securityholders....................... 23
Section 6.04. Voting Rights............................................... 23
Section 6.05. Proxies, Etc................................................ 23
Section 6.06. Securityholder Action by Written Consent.................... 23
Section 6.07. Record Date for Voting and Other Purposes................... 23
Section 6.08. Acts of Securityholders..................................... 24
Section 6.09. Inspection of Records....................................... 25
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF THE BANK
Section 7.01. Representations and Warranties.............................. 25
ARTICLE VIII
THE TRUSTEES
Section 8.01. Certain Duties and Responsibilities......................... 26
Section 8.02. Notice of Defaults.......................................... 27
Section 8.03. Certain Rights of the Property Trustee...................... 27
Section 8.04. Not Responsible for Recitals or Issuance of Securities...... 29
Section 8.05. May Hold Securities......................................... 29
Section 8.06. Compensation; Fees; Indemnity............................... 29
Section 8.07. Corporate Property Trustee Required; Eligibility of Trustees 30
Section 8.08. Conflicting Interests....................................... 30
Section 8.09. Co-Trustees and Separate Trustees........................... 30
Section 8.10. Resignation and Removal; Appointment of Successor........... 32
Section 8.11. Acceptance of Appointment by Successor...................... 33
Section 8.12. Merger, Conversion, Consolidation or Succession to Business. 34
Section 8.13. Preferential Collection of Claims Against Depositor or
Trust....................................................... 34
Section 8.14. Reports by the Property Trustee............................. 34
Section 8.15. Reports to the Property Trustee............................. 34
Section 8.16. Evidence of Compliance with Conditions Precedent............ 34
Section 8.17. Number of Trustees.......................................... 35
Section 8.18. Delegation of Power......................................... 35
TABLE OF CONTENTS (CONT.)
Page
ARTICLE IX
TERMINATION AND LIQUIDATION
Section 9.01. Termination Upon Expiration Date............................ 35
Section 9.02. Early Termination........................................... 35
Section 9.03. Termination................................................. 36
Section 9.04. Liquidation................................................. 36
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01. Limitation on Rights of Securityholders.................... 37
Section 10.02. Amendment.................................................. 38
Section 10.03. Separability............................................... 39
Section 10.04. Tax Elections.............................................. 39
Section 10.05. GOVERNING LAW.............................................. 39
Section 10.06. Successors................................................. 39
Section 10.07. Headings................................................... 39
Section 10.08. Intention of Parties....................................... 39
Section 10.09. Notice and Demand.......................................... 39
Section 10.10. Agreement Not to Petition.................................. 40
Section 10.11. Trust Indenture Act; Conflict with Trust Indenture Act..... 40
--------------------
Exhibit A Certificate of Trust
Exhibit B Form of Certificate Depository Agreement
Exhibit C The Depository Trust Company: Principal and Income Payments
Rider
Exhibit D Representations for Deposit/Withdrawal at Custodian
Exhibit E Form of Common Securities Certificate
Exhibit F Form of Agreement as to Expenses and Liabilities
Exhibit G Form of Preferred Securities Certificate
WESTERN RESOURCES CAPITAL I
AMENDED AND RESTATED TRUST AGREEMENT, dated as of _____ __,____,
among (i) Western Resources, Inc., a Kansas corporation (the "Depositor" or
"Western Resources"), (ii) Wilmington Trust Company, a banking corporation
duly organized and existing under the laws of the State of Delaware, as
trustee (the "Property Trustee" and, in its separate corporate capacity and
not in its capacity as Property Trustee, the "Bank"), (iii) Xxxxxx X. Kitchen,
an individual, Xxxxx X. Xxxxxx, an individual, and Xxxx X. Xxxxxxxxx, an
individual, each of whose address is c/o Western Resources, 000 Xxxxxx Xxxxxx,
Xxxxxx, Xxxxxx 00000 (each an "Administrative Trustee" and referred to
collectively as the "Administrative Trustees") (the Property Trustee and the
Administrative Trustees being referred to collectively as the "Trustees") and
(iv) the several Holders (as defined herein).
W I T N E S S E T H:
WHEREAS, the Depositor and the Bank have heretofore duly declared
and established Western Resources Capital I (the "Trust") as a business trust
pursuant to the Delaware Business Trust Act by the entering into of that
certain Trust Agreement dated as of October 12, 1995 (the "Original Trust
Agreement"), and by the execution and filing on October 12, 1995 by the
Property Trustee with the Secretary of State of the State of Delaware of the
Certificate of Trust attached hereto as Exhibit A; and
WHEREAS, the Depositor and the Bank desire to amend and restate the
Original Trust Agreement in its entirety as set forth herein to provide for,
among other things, (i) the acquisition by the Trust from the Depositor of all
of the right, title and interest in the Debentures (as defined herein),
(ii) the issuance of the Common Securities (as defined herein) by the Trust to
the Depositor, (iii) the issuance and sale of the Preferred Securities (as
defined herein) by the Trust pursuant to the Underwriting Agreement (as
defined herein) and (iv) the appointment of the Administrative Trustees;
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 is hereby acknowledged, each party, for the benefit
of the other parties hereto, including the Holders, and intending to be
legally bound hereby amends and restates the Original Trust Agreement in its
entirety and agrees as follows:
ARTICLE I
DEFINED TERMS
Section 1.01. 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;
(c) 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; and
(d) 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.
"Act" has the meaning specified in Section 6.08.
"Additional Amount" means the amount of Additional Interest
Attributable to Deferral (as defined in the Subordinated Indenture) paid by
the Depositor on a Like Amount of Debentures for such period.
"Administrative Trustee" means each of the individuals identified as
an "Administrative Trustee" in the preamble to this Trust Agreement solely in
his or her capacity as Administrative Trustee of the Trust heretofore formed
and continued hereunder, and not in his or her individual capacity; or such
Administrative Trustee's successor in interest in such capacity, or any
successor administrative trustee appointed as herein provided.
"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 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.
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(i) a decree or order is entered by a court having jurisdiction in
the premises (a) for relief in respect of such Person in an involuntary
case or proceeding under the Federal Bankruptcy Code or any other Federal
or state bankruptcy, insolvency, reorganization or similar law or (b)
adjudging such Person a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment or composition of or in respect of such Person
under the Federal Bankruptcy Code or any other applicable Federal or
state law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of such Person or of
any substantial part of any of its properties, or ordering the winding up
or liquidation of any of its affairs, and any such decree or order
remains unstayed and in effect for a period of 60 consecutive days; or
(ii) such Person institutes a voluntary case or proceeding under the
Federal Bankruptcy Code or any other applicable Federal or state law or
any other case or proceeding to be adjudicated a bankrupt or insolvent,
or such Person consents to the entry of a decree or order for relief in
respect of such Person in any involuntary case or proceeding under the
Federal Bankruptcy Code or any other applicable Federal or state law or
to the institution of bankruptcy or insolvency proceedings against such
Person, or such Person files a petition or answer or consent seeking
reorganization or relief under the Federal Bankruptcy Code or any other
applicable Federal or state law, or consents to the filing of any such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of any such Person or of any substantial part of its property,
or makes an assignment for the benefit of creditors, or admits in writing
its inability to pay its debts generally as they become due or takes
corporate action in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.08.
"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 Depositor's Board of Directors or a duly authorized committee thereof
and delivered to the Trustees.
"Book-Entry Preferred Securities Certificates" means a beneficial
interest in the Preferred Securities Certificates, ownership and transfers of
which shall be made through book entries by a Clearing Agency as described in
Section 5.10.
"Business Day" means a day other than (x) a Saturday or a Sunday,
(y) a day on which banks in New York, New York are authorized or obligated by
law or executive order to remain closed or (z) a day on which the Property
Trustee's corporate trust office or, if Western Resources acts as Paying
Agent, Western Resources' principal office is closed for business.
"Certificate Depository Agreement" means the agreement among the
Trust, the Depositor and The Depository Trust Company, as the initial Clearing
Agency, dated as of the Closing Date, relating to the Trust Certificates, sub-
stantially in the form attached hereto as Exhibit B, as the same may be
amended and supplemented from time to time.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. The Depository Trust Company will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with
the Clearing Agency.
"Closing Date" means the "Time of Delivery" as defined in the
Underwriting Agreement, which date is also the date of execution and delivery
of this Trust 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 Securities Exchange Act of 1934,
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.
"Common Security" means a beneficial interest in the Trust, having a
Liquidation Amount of $25 and having the rights provided therefor in this
Trust Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached hereto as
Exhibit C.
"Corporate Trust Office" means the principal office of the Property
Trustee located in Wilmington, Delaware.
"Debenture Event of Default" means an "Event of Default" as defined
in the Subordinated Indenture.
"Debenture Redemption Date" means "Redemption Date" as defined in
the Subordinated Indenture.
"Debenture Trustee" means Wilmington Trust Company, a banking
corporation duly organized and existing under the laws of the State of
Delaware.
"Debentures" means the $_________ aggregate principal amount of
Western Resources __% Deferrable Interest Subordinated Debentures, Series A
Due 20__, issued pursuant to the Subordinated Indenture.
"Definitive Preferred Securities Certificates" means either or both
(as the context requires) of (i) Preferred Securities Certificates issued in
typewritten, fully registered form as provided in Section 5.10(a) and (ii)
Preferred Securities Certificates issued in certificated, fully registered
form as provided in Section 5.12.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. Section 3801, et seq., as it may be amended from
time to time.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 4.01(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.01.
"Event of Default" means the occurrence of a Debenture Event of
Default (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).
"Expense Agreement" means the Agreement as to Expenses and
Liabilities between Western Resources and the Trust, substantially in the form
attached as Exhibit D, as amended from time to time.
"Federal Bankruptcy Code" means the Bankruptcy Act of Title 11 of
the United States Code, as amended from time to time.
"Final Distribution" has the meaning set forth in Section 9.04.
"Final Distribution Date" means the Date on which Debentures are to
be distributed to Holders of Trust Securities in connection with a dissolution
and liquidation of the Trust pursuant to Section 9.04(a).
"Global Certificate" shall mean the Preferred Securities Certificate
or Certificates issued as specified in Section 5.10.
"Guarantee" means the Guarantee Agreement executed and delivered by
Western Resources and Wilmington Trust Company, a Delaware banking
corporation, as trustee, contemporaneously with the execution and delivery of
this Trust Agreement, as amended from time to time.
"Holder" or "Securityholder" means a Person in whose name a Trust
Security or 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.
"Investment Company Event" means the occurrence of a change in law
or regulation or a change in the interpretation or application of any law or
regulation by any legislative body, court, governmental agency or regulatory
authority (a "Change in 1940 Act Law") to the effect that the Trust is or will
be considered an "investment company" that is required to be registered under
the Investment Company Act of 1940, as amended, which Change in 1940 Act Law
becomes effective on or after the date of original issuance of the Preferred
Securities.
"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 (i) Trust Securities having an aggregate
Liquidation Amount equal to the principal amount of Debentures to be
contemporaneously redeemed in accordance with the Subordinated Indenture and
the proceeds of which will be used to pay the Redemption Price of such Trust
Securities, or (ii) Debentures having a principal amount equal to the
aggregate Liquidation Amount of the Trust Securities of the Holder to whom
such Debentures are distributed, as the case may be.
"Liquidating Trustee" means a Person appointed pursuant to Section
9.04(b), solely in its capacity as Liquidating Trustee of the Trust heretofore
formed and continued hereunder and not in its individual capacity.
"Liquidation Amount" means the stated amount of U.S. $25 per Trust
Security.
"Liquidation Distribution" has the meaning specified in Section
9.04(e).
"Officers' Certificate" means a certificate signed by (i) the
Chairman, a Vice Chairman, the President, a Vice President, or the Treasurer
of the Depositor and (ii) the Secretary or an Assistant Secretary of the
Depositor, and delivered to the appropriate Trustee; provided, however, that
such certificate may be signed by two of the officers or directors listed in
clause (i) above in lieu of being signed by one of such officers or directors
listed in such clause (i) and one of the officers listed in clause (ii) above.
One of the officers signing an Officers' Certificate given pursuant to
Section 8.16 shall be the principal executive, financial or accounting officer
of the Depositor. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Trust Agreement
shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as
to whether or not such covenant or condition has been complied with;
and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Trust, the Property Trustee or the Depositor, but not an
employee of the Trust, the Property Trustee or the Depositor, and who shall be
reasonably acceptable to the Property Trustee.
"Original Trust Agreement" has the meaning specified in the recitals
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:
(i) Trust Securities theretofore canceled by the Administrative
Trustees or delivered to the Administrative Trustees for cancellation;
(ii) 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 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
(iii) Trust Securities which have been paid pursuant to Section
5.05 or in exchange for or in lieu of which other Trust Securities have
been authenticated and delivered pursuant to this Trust Agreement;
provided, however, that in determining whether the Holders of the requisite
aggregate Liquidation Amount of the Outstanding Trust Securities have given
any request, demand, authorization, direction, notice, consent or waiver here-
under, Trust Securities owned by the Depositor, any Trustee or any Affiliate
of the Depositor or any Trustee shall be disregarded and deemed not to be
Outstanding, except that (a) in determining whether any Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Trust Securities which such Trustee knows to
be so owned shall be so disregarded and (b) the foregoing shall not apply at
any time when all of the outstanding Preferred Securities are owned by the
Depositor, one or more of the Trustees and/or any such Affiliate. Trust
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Administrative Trustees the pledgee's right so to act with respect to such
Trust Securities and that the pledgee is not the Depositor, any Trustee or any
Affiliate of the Depositor or any Trustee.
"Owner" means each Person who is the beneficial owner of a Book-
Entry Preferred Securities Certificate as reflected in the records of the
Clearing Agency or, if a Clearing Agency Participant is not the Owner, then as
reflected in the records of a Person maintaining an account with such Clearing
Agency (directly or indirectly, in accordance with the rules of such Clearing
Agency).
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.08 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate
trust account maintained by the Property Trustee with the Bank in its trust
department for the benefit of the Securityholders in which all amounts paid in
respect of the Debentures will be held and from which the Property Trustee
shall make payments to the Securityholders in accordance with Section 4.04.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
"Preferred Security" means a beneficial interest in the Trust,
having a Liquidation Amount of $25 and having the rights provided therefor in
this Trust Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached as
Exhibit E.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Trust Agreement,
solely in its capacity as Property Trustee of the Trust heretofore formed and
continued hereunder and not in its individual capacity, or its successor in
interest in such capacity, or any successor 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 shall be a Redemption
Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any date fixed for
redemption of any Trust Security, the Liquidation Amount of such Trust
Security, plus accumulated and unpaid Distributions to such date.
"Relevant Trustee" shall have the meaning specified in Section 8.10.
"Securities Register" and "Securities Registrar" shall be as
described in Section 5.04.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security or 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.
"Special Event" means either a Tax Event or an Investment Company
Event.
"Subordinated Indenture" means the Indenture, dated as of
__________ __,____, between Western Resources and the Debenture Trustee, as
trustee, as amended or supplemented from time to time.
"Supplemental Indenture" means the Supplemental Indenture to the
Indenture establishing the Debentures.
"Tax Event" means the receipt by the Trust or the Depositor, as the
case may be, of an Opinion of Counsel experienced in such matters to the
effect that a relevant tax law change has occurred. For purposes of the
preceding sentence a relevant tax law change is any amendment or change to (or
officially proposed amendment or change to) the laws (including regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof, or the publication of any judicial opinion interpreting
such laws (or regulations) or any written interpretation of such laws (or
regulations) by any governmental authority having jurisdiction to enforce or
administer such laws (or regulations) (including official and unofficial
opinions purporting to apply such laws and regulations to other Persons who
have issued securities similar to the Debentures), which amendment, change,
proposed amendment or change, opinion or interpretation could if valid and
enacted or applied to the Trust or the Depositor result in (i) the Trust,
either currently or within 90 days of the date thereof, becoming subject to
United States Federal income tax with respect to interest received on the
Debentures, (ii) interest payable by the Depositor on the Debentures
attributable to the Preferred Securities, either currently or within 90 days
of the date thereof, becoming nondeductible for United States Federal income
tax purposes or (iii) the Trust, either currently or within 90 days of the
date thereof, becoming subject to more than a de minimis amount of other
taxes, duties or other governmental charges.
"Trust" means the Delaware business trust created and continued
hereby and identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Trust Agreement, as the same may be
modified, amended or supplemented in accordance with the applicable provisions
hereof, including all exhibits hereto, including, for all purposes of this
Trust Agreement and any such modification, amendment or supplement, the
provisions of the Trust Indenture Act that are "automatically" deemed to be a
part of and govern this Trust Agreement and any such modification, amendment
or supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this Trust Agreement was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after
such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (i) the Debentures, (ii) any cash on deposit
in, or owing to, the Payment Account and (iii) all proceeds and rights in
respect of the foregoing and 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 Security" means any one of the Common Securities or the
Preferred Securities.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
"Underwriting Agreement" means the Underwriting Agreement, dated as
of ______ ___, ____, among the Trust, Western Resources and the several
underwriters named therein.
ARTICLE II
ESTABLISHMENT OF THE TRUST
Section 2.01. Name. The Trust created and continued hereby shall
be known as "Western Resources Capital I," as such name may be modified from
time to time by the Administrative Trustees following written notice to the
Holders and the other Trustees, in which name the Trustees may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and xxx and be sued.
Section 2.02. Office of the Property Trustee; Principal Place of
Business. The office of the Property Trustee in the State of Delaware is
Wilmington Trust Company, Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Administration, or
such other address in Delaware as the Property Trustee may designate by
written notice to the Securityholders and the Depositor. The principal place
of business of the Trust is c/o Western Resources, Inc., 000 Xxxxxx Xxxxxx,
Xxxxxx, Xxxxxx 00000; Attention: Vice President, Finance.
Section 2.03. Initial Contribution of Trust Property;
Organizational Expenses. The Property Trustee acknowledges receipt, in trust
from the Depositor in connection with the Original Trust Agreement, of the sum
of $10, which constituted the initial Trust Property. The Depositor shall pay
the 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 2.04. Issuance of the Preferred Securities.
On_______________, the Depositor, on behalf of the Trust and pursuant to the
Original Trust Agreement, executed and delivered the Underwriting Agreement.
Contemporaneously with the execution and delivery of this Trust Agreement, the
Administrative Trustees, on behalf of the Trust, shall execute and deliver to
the underwriters named therein Preferred Securities Certificates, registered
in the name of the nominee of the initial Clearing Agency, in an aggregate
amount of _________ Preferred Securities having an aggregate Liquidation
Amount of $________ against receipt of the aggregate purchase price of such
Preferred Securities of $________, which amount the Administrative Trustees
shall promptly deliver to the Property Trustee. The consideration received by
the Trust for the issuance of the Preferred Securities shall constitute a
contribution to the capital of the Trust and shall not constitute a loan to
the Trust.
Section 2.05. Subscription and Purchase of Debentures; Issuance of
the Common Securities. Contemporaneously with the execution and delivery of
this Trust Agreement, the Administrative Trustees, on behalf of the Trust,
shall subscribe to and purchase from the Depositor Debentures, registered in
the name of the Trust and having an aggregate principal amount equal to
$________, and, in satisfaction of the purchase price for such Debentures, (x)
the Property Trustee, on behalf of the Trust, shall deliver to the Depositor
the sum of $________, and (y) contemporaneously therewith the Administrative
Trustees, on behalf of the Trust, shall execute and deliver to the Depositor
Common Securities Certificates, registered in the name of the Depositor, in an
aggregate amount of ______ Common Securities having an aggregate Liquidation
Amount of $________. The consideration received by the Trust for the issuance
of the Common Securities shall constitute a contribution to the capital of the
Trust and shall not constitute a loan to the Trust.
Section 2.06. Declaration of Trust. The exclusive purposes of the
Trust are (a) to issue Trust Securities, (b) to purchase the Debentures with
the Common Securities and the proceeds from the sale of the Preferred
Securities, and (c) to engage in those activities necessary 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 Securityholders. The
Administrative Trustees shall have all rights, powers and duties set forth
herein and in accordance with applicable law with respect to accomplishing the
purposes of the Trust.
Section 2.07. Authorization to Enter into Certain Transactions.
(a) The Trustees 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
(A) and (B), the Trustees shall have the authority to enter into all trans-
actions and agreements determined by the Trustees to be appropriate in
exercising the authority, express or implied, otherwise granted to the
Trustees under this Trust Agreement, and to perform all acts in furtherance
thereof, including without limitation, the following:
(A) As among the Trustees, the Administrative Trustees shall
have the power, duty and authority to act on behalf of the Trust
with respect to the following matters:
(i) the issuance and sale of the Trust Securities;
(ii) to cause the Trust to enter into, and to execute,
deliver and perform on behalf of the Trust, the Expense
Agreement and the Certificate Depository Agreement and such
other agreements as may be necessary or desirable in connection
with the purposes and function of the Trust;
(iii) assisting in the registration of the Preferred
Securities under the Securities Act of 1933, as amended, and
under state securities or blue sky laws, and the qualification
of this Trust Agreement as a trust indenture under the Trust
Indenture Act;
(iv) assisting in the listing of the Preferred Securities
upon such securities exchange or exchanges as shall be
determined by the Depositor and the registration of the
Preferred Securities under the Securities Exchange Act of 1934,
as amended, and the preparation and filing of all periodic and
other reports and other documents pursuant to the foregoing;
(v) the sending of notices (other than notices of
default) and other information regarding the Trust Securities
and the Debentures to the Securityholders in accordance with
this Trust Agreement;
(vi) the appointment of a Paying Agent, authenticating
agent and Securities Registrar in accordance with this Trust
Agreement;
(vii) registering transfers of the Trust Securities in
accordance with this Trust Agreement;
(viii) 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
Delaware;
(ix) unless otherwise determined by the Depositor, the
Property Trustee or the Administrative Trustees, or as
otherwise required by the Delaware Business Trust Act or the
Trust Indenture Act, to execute on behalf of the Trust (either
acting alone or together with any or all of the Administrative
Trustees) any documents that the Administrative Trustees have
the power to execute pursuant to this Trust Agreement; and
(x) the taking of any action incidental to the foregoing
as the Administrative Trustees may from time to time determine
is necessary or advisable to give effect to the terms of this
Trust Agreement for the benefit of the Securityholders (without
consideration of the effect of any such action on any
particular Securityholder).
(B) As among the Trustees, the Property Trustee shall have the
power, duty and authority to act on behalf of the Trust with respect
to the following matters:
(i) the establishment and maintenance of the Payment
Account;
(ii) the receipt of the Debentures;
(iii) the collection of interest, principal and any other
payments made in respect of the Debentures into the Payment
Account;
(iv) the distribution of amounts owed to the Security-
holders in respect of the Trust Securities;
(v) the sending of notices of default and other
information regarding the Trust Securities and the Debentures
to the Securityholders in accordance with this Trust Agreement;
(vi) the distribution of the Trust Property in accordance
with the terms of this Trust Agreement;
(vii) 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
Delaware;
(viii) after the occurrence of an Event of Default, the
taking of any action incidental to the foregoing as the
Property Trustee may from time to time determine is necessary
or advisable to protect and conserve the Trust Property for the
benefit of the Securityholders (without consideration of the
effect of any such action on any particular Securityholder);
and,
(ix) subject to this Section 2.07(a)(B), the Property
Trustee shall have none of the duties of the Administrative
Trustees set forth in Section 2.07(a)(A).
(b) So long as this Trust Agreement remains in effect, the Trust
(or the Trustees acting on behalf of the Trust) shall not undertake any
business, activities or transaction except as expressly provided herein or
contemplated hereby. In particular, the Trustees shall not (i) acquire any
investments or engage in any activities not authorized by this Trust
Agreement, (ii) sell, assign, transfer, exchange, pledge, set-off or otherwise
dispose of any of the Trust Property or interests therein, including to
Securityholders, except as expressly provided herein, (iii) take any action
that would cause the Trust to be treated as an association taxable as a
corporation for United States Federal income tax purposes, (iv) incur any
indebtedness for borrowed money or (v) take or consent to any action that
would result in the placement of a Lien on any of the Trust Property. The
Administrative Trustees 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 Securityholders in their capacity as Security-
holders.
(c) In connection with the issue and sale of the Preferred Securi-
ties, 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) to prepare for filing with the Commission a registration
statement on Form S-3 in relation to the Preferred Securities, the
Debentures and the Guarantee, including any amendments thereto;
(ii) to determine the States in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and to do any and all such acts, other than actions which must
be taken by or on behalf of the Trust, and advise the Trustees of actions
they must take on behalf of the Trust, and prepare for execution and
filing 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;
(iii) to prepare for filing by the Trust an application to the
New York Stock Exchange for listing upon notice of issuance of the
Preferred Securities;
(iv) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the
Preferred Securities under Section 12(b) of the Securities Exchange Act
of 1934, as amended, including any amendments thereto;
(v) to negotiate the terms of, and execute and deliver, the
Underwriting Agreement providing for the sale of the Preferred
Securities; and
(vi) any other actions necessary or desirable to carry out any
of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees 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 of 1940, as amended, or taxed as a corporation for United States Federal
income tax purposes and so that the Debentures will be treated as indebtedness
of the Depositor for United States Federal income tax purposes. In so doing,
the Depositor and the Administrative Trustees are authorized to take any
action, not inconsistent with applicable law, the Certificate of Trust or this
Trust Agreement, that the Depositor or any of the Administrative Trustees
determines in its or his discretion to be necessary or desirable for such
purposes, provided that such action does not adversely affect the interests of
the Holders of the Preferred Securities. Any action not specifically assigned
herein that the Trustees may be permitted or required to do under this Trust
Agreement may be taken by majority vote of the Trustees.
Section 2.08. Assets of the Trust. The assets of the Trust shall
consist of the Trust Property.
Section 2.09. 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 Securityholders in accordance with this Trust Agreement.
ARTICLE III
PAYMENT ACCOUNT
Section 3.01. Payment Account. (a) On or prior to the Closing
Date, the Property Trustee shall establish the Payment Account. The Property
Trustee and any agent of the Property Trustee shall have exclusive control and
sole right of 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 monies 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 Securityholders 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 or interest on, and any other
payments or proceeds with respect to, the Debentures. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTIONS
Section 4.01. Distributions. (a) 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 accrue from ________ __,____, and, except in the event that Western
Resources exercises its right to extend the interest payment period for the
Debentures pursuant to Section 101 of the Supplemental Indenture, shall be
payable quarterly in arrears on March 31, June 30, September 30 and
December 31 of each year, commencing on________________. If any date on which
Distributions are 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 which is a Business Day (and without any interest or other
payment in respect of any such delay) except that, if such Business Day is in
the next succeeding calendar year, payment of such distribution shall be made
on the immediately preceding Business Day, in each case, with the same force
and effect as if made on such date (each date on which distributions are
payable in accordance with this Section 4.01(a) a "Distribution Date").
(b) The Trust Securities represent beneficial interests in the
Trust, and, subject to Section 4.03 hereof, all Distributions will be made pro
rata on each of the Trust Securities; distributions payable as a preference on
the Preferred Securities shall be fixed at a rate of ___% per annum of the
Liquidation Amount of the Preferred Securities. The amount of Distributions
payable for any full quarterly period shall be computed on the basis of twelve
30-day months and a 360-day year and, for any period shorter than a full
monthly period, shall be computed on the basis of the actual number of days
elapsed in such period. If the interest payment period for the Debentures is
extended pursuant to Section 101 of the Supplemental Indenture, then the rate
per annum at which Distributions on the Trust Securities accumulate shall be
increased by an amount such that the aggregate amount of Distributions that
accumulate on all Trust Securities during any such extended interest payment
period is equal to the aggregate amount of interest (including interest
payable on unpaid interest at the percentage rate per annum set forth above,
compounded quarterly) that accrues during any such extended interest payment
period on the Debentures. The amount of Distributions payable for any period
shall include the Additional Amounts, if any.
(c) Distributions on the Trust Securities shall be made and shall
be deemed payable on each Distribution Date only to the extent that the Trust
has funds legally and immediately available in the Payment Account for the
payment of such Distributions.
(d) 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 on the relevant record date,
which shall be one Business Day prior to such Distribution Date; provided,
however, that in the event that the Preferred Securities do not remain in
book-entry-only form, the relevant record date shall be the date 15 days prior
to the relevant Distribution Date.
Section 4.02. Redemptions. (a) On each Debenture Redemption Date,
the Trust will be required to redeem a Like Amount of Trust Securities at the
Redemption Price.
(b) If (i) (x) a Special Event shall occur and be continuing and
(y) within 45 days following the occurrence of such Special Event the Trustees
shall not have received from the Debenture Trustee a notice of redemption of
all of the Debentures on a Debenture Redemption Date (as specified in such
notice) which is to occur not later than 90 days following the occurrence of
such Special Event, or (ii) if the Trust is not or will not be taxed as a
grantor trust, the Depositor may in its sole discretion direct the Trustees
to, and the Trustees shall if so directed by the Depositor, dissolve the Trust
and cause the Trust to distribute to each Holder of Trust Securities, in
accordance with Section 9.04 and on a Liquidation Date which shall occur not
later than 90 days following the occurrence of such Special Event, a Like
Amount of Debentures in liquidation of the Trust; provided, however, that the
Trustees shall be required to follow the direction of the Depositor to
dissolve the Trust and distribute the Debentures to Holders of Trust
Securities in accordance with this Section 4.02(b) and Section 9.04 only if
the Trust shall have received an Opinion of Counsel experienced in such
matters to the effect that the Holders of Preferred Securities will not
recognize any gain or loss for United States Federal income tax purposes as a
result of such distribution. The election of the Depositor to cause the Trust
to be dissolved shall be evidenced by a Board Resolution. If the Trust is not
dissolved pursuant to the preceding sentence and the Trust Securities remain
Outstanding, then Additional Interest Attributable to Taxes (as defined in the
Subordinated Indenture) will be payable on the Debentures.
(c) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 90
days prior to the Redemption Date to each Holder of Trust Securities to be
redeemed, at such Holder's address appearing in the Securities Register. All
notices of redemption shall identify the Trust Securities to be redeemed
(including CUSIP number) and shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the place or payment where such Trust Securities are to
be surrendered for payment of the Redemption Price; and
(iv) that on the Redemption Date the Redemption Price will
become due and payable upon each such Trust Security to be redeemed
and that, if the monies required to effect such redemption have been
duly deposited by Western Resources with the Property Trustee,
interest thereon will cease to accrue on and after said date.
(d) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Debentures. Redemptions of the Trust Securities shall be made
and the Redemption Price shall be deemed payable on each Redemption Date only
to the extent that the Trust has funds immediately available in the Payment
Account for the payment of such Redemption Price.
(e) If the Property Trustee gives a notice of redemption in respect
of any Preferred Securities, then, by 12:00 noon, New York time, on the
Redemption Date, subject to Section 4.02(d), the Property Trustee shall, so
long as the Preferred Securities are in book-entry-only form, irrevocably
deposit with the Clearing Agency for the Preferred Securities funds sufficient
to pay the applicable Redemption Price and, at the direction of the Depositor,
shall give such Clearing Agency irrevocable instructions and authority to pay
the Redemption Price to the Holders thereof; provided if the Property Trustee
does not do so, it will be regarded as having revoked the notice of
redemption. If the Preferred Securities are no longer in book-entry-only
form, the Property Trustee, subject to Section 4.02(d), shall irrevocably
deposit with the Paying Agent funds sufficient to pay the applicable
Redemption Price and shall give the Paying Agent irrevocable instructions to
pay the Redemption Price to the Holders thereof upon surrender of their Pre-
ferred 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 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
Securityholders holding Trust Securities so called for redemption will cease,
except the right of such Securityholders to receive the Redemption Price, but
without interest on such Redemption Price, and such Securities will cease to
be outstanding. In the event that any date on which any Redemption Price is
payable is not a Business Day, then payment of the Redemption Price payable on
such date shall be made on the next succeeding day which is a Business Day
(and without any interest or other payment in respect of any such delay)
except that, if such Business Day is in the next succeeding calendar year,
payment of such Distribution shall 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 not paid either by the Trust or by
the Depositor pursuant to the Guarantee, such Trust Securities shall be
considered to remain outstanding and will continue to accrue, at the rate
specified above, from the Redemption Date originally established by the Trust
for such Trust Securities to the date such Redemption Price is actually paid,
in which case the actual payment date will be the date fixed for redemption
for purposes of calculating the Redemption Price.
(f) Payment of the Redemption Price on the Trust Securities shall
be made to the Owners thereof as they appear on the Securities Register on the
relevant record date, which shall be one Business Day prior to the relevant
Redemption Date; provided, however, that in the event that the Preferred
Securities do not remain in book-entry-only form, the relevant record date
shall be the fifteenth day prior to the Redemption Date.
(g) If less than all the Outstanding Trust Securities are to be
redeemed on a Redemption Date, then the aggregate Liquidation Amount of Trust
Securities to be redeemed shall be allocated to the Common Securities and the
Preferred Securities on a pro rata basis based upon their respective aggregate
Liquidation Amounts. The particular Preferred Securities to be redeemed shall
be selected not more than 60 days prior to the Redemption Date by the Property
Trustee from the Outstanding Preferred Securities not previously called for
redemption, by such method as the Property Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to $25 or any integral multiple thereof) of the aggregate Liquidation
Amount of Preferred Securities of a denomination larger than $25. The
Property Trustee shall promptly notify the Securities Registrar in writing of
the Preferred Securities selected for redemption and, in the case of any
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
Preferred Securities shall relate, in the case of any Preferred Securities
redeemed or to be redeemed only in part, to the portion of the aggregate
Liquidation Amount of Preferred Securities which has been or is to be
redeemed.
Section 4.03. Subordination of Common Securities. (a) Payment of
Distributions (including Additional Amounts, if applicable) on, and the
Redemption Price of, the Trust Securities, as applicable, shall be made pro
rata based on the aggregate Liquidation Amount of the Trust Securities;
provided, however, that if on any Distribution Date or Redemption Date a
Debenture Event of Default shall have occurred and be continuing, no payment
of any Distribution (including Additional Amounts, if applicable) on, or
Redemption Price of, any Common Security, and no other payment on account of
the redemption, liquidation or other acquisition of Common Securities, shall
be made unless payment in full in cash of all accumulated and unpaid
Distributions (including Additional Amounts, if applicable) payable as a
preference on all Outstanding 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
Preferred Securities called for redemption, shall have been made or provided
for, and all funds available to the Property Trustee shall first be applied to
the payment in full in cash of all Distributions (including Additional
Amounts, if applicable) on, or the Redemption Price of, Preferred Securities
then due and payable.
(b) In the case of the occurrence of any Debenture Event of
Default, the Holder of Common Securities will be deemed to have waived any
right to act with respect to any Event of Default until the effect of all such
Events of Default with respect to the Preferred Securities have been cured,
waived or otherwise eliminated. Until any such Events of Default under this
Trust Agreement with respect to the Preferred Securities have been so cured,
waived or otherwise eliminated, the Property Trustee shall act in accordance
with Article VIII hereof and solely on behalf of the Holders of the Preferred
Securities and not the Holder of the Common Securities. In such event, only
the Holders of the Preferred Securities will have the right to direct the
Property Trustee to act on their behalf.
Section 4.04. Payment Procedures. Payments in respect of the
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 Preferred Securities are held by a Clearing Agency,
payments shall be made by wire transfer to the Clearing Agency, which shall
credit the relevant Persons' accounts at such Clearing Agency on the
applicable Distribution Dates. Payments in respect of the Common Securities
shall be made in such manner as shall be mutually agreed between the Property
Trustee and the Common Securityholder.
Section 4.05. Tax Returns and Reports. The Administrative Trustees
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
(including, without limitation, Form 8281 which must be filed by an issuer of
an original issue discount security) and reports required to be filed by or in
respect of the Trust. In this regard, the Administrative Trustees shall
prepare and file (or cause to be prepared or filed) the Internal Revenue
Service forms required to be filed in respect of the Trust in each taxable
year of the Trust. The Administrative Trustees shall provide the Depositor
and the Property Trustee with a copy of all such returns, reports and
schedules promptly after such filing or furnishing. The Trustees shall comply
with United States Federal withholding and backup withholding tax laws and
information reporting requirements with respect to any payments to
Securityholders under the Trust Securities.
Section 4.06. Payment of Taxes, Duties, Etc. of the Trust. Upon
receipt under the Debentures of Additional Interest Attributable to Taxes (as
defined in the Subordinated Indenture), the Property Trustee shall distribute
to the Administrative Trustees an amount requested by them and they shall
promptly pay any taxes, duties, assessments or governmental charges of
whatsoever nature (other than withholding taxes) imposed on the Trust by the
United States or any other taxing authority.
ARTICLE V
TRUST SECURITIES CERTIFICATES
Section 5.01. Initial Ownership. Upon the formation of the Trust
and the contribution by the Depositor pursuant to Section 2.03 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 5.02. The Trust Securities Certificates. Initial Holders
shall purchase Preferred Securities in minimum denominations of $25 (based on
Liquidation Amount) and integral multiples of $25 in excess thereof, and the
Common Securities Certificates shall be issued in denominations of $25 (based
on Liquidation Amount) and integral multiples thereof. The Trust Securities
Certificates shall be executed on behalf of the Trust by the manual signature
of at least one Administrative Trustee. Trust Securities Certificates bearing
the manual 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
Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Section 5.04.
Section 5.03. Delivery of Trust Securities Certificates. On the
Closing Date, the Administrative Trustees shall cause Trust Securities
Certificates, in an aggregate Liquidation Amount as provided in Sections 2.04
and 2.05, to be executed on behalf of the Trust and delivered to or upon the
written order of the Depositor signed by its chairman of the board, its
president or any vice president, without further corporate action by the
Depositor, in authorized denominations.
Section 5.04. Registration of Transfer and Exchange of Preferred
Securities Certificates. The Securities Registrar shall keep or cause to be
kept a Securities Register in which, subject to such reasonable regulations as
it may prescribe, the Securities Registrar shall provide for the registration
of Trust Securities Certificates and registration of transfers and exchanges
of Trust Securities Certificates as herein provided. The Bank shall be the
initial Securities Registrar. The provisions of Sections 8.01, 8.03 and 8.06
shall apply to the Bank in its role as Securities Registrar.
Upon surrender for the registration of the transfer of any Trust
Securities Certificate, the Administrative Trustees or any one of them shall
execute and deliver, in the name of the designated transferee or transferees,
one or more new Trust Securities Certificates in authorized denominations of a
like aggregate Liquidation Amount dated the date of execution by such
Administrative Trustee or Trustees. The Securities Registrar shall not be
required to register the transfer of any Trust Securities that have been
called for redemption. At the option of a Holder, Trust Securities Certifi-
xxxxx may be exchanged for other Trust Securities Certificates in authorized
denominations of the same class and of a like aggregate Liquidation Amount
upon surrender of the Trust Securities Certificates to be exchanged.
Every Trust Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer, in form satisfactory to the Administrative Trustees
and the Securities Registrar, duly executed by the Holder or his or her
attorney. Each Trust Securities Certificate surrendered for registration of a
transfer or exchange shall be canceled and subsequently disposed of by the
Administrative Trustees.
No service charge shall be made for any registration of transfer or
exchange of Trust Securities Certificates, but the Administrative Trustees or
the Securities Registrar may require payment of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection with any transfer
or exchange of Trust Securities Certificates.
Section 5.05. 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 Administrative Trustees 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 Administrative Trustees or any one of
them on behalf of the Trust shall execute and make available for delivery, 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. In connection with the issuance of any new Trust
Securities Certificate under this Section, the Administrative Trustees 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 a beneficial interest in the Trust, as
if originally issued, whether or not the lost, stolen or destroyed Trust
Securities Certificate shall be found at any time.
Section 5.06. Persons Deemed Securityholders. Prior to due
presentation of a Trust Securities Certificate for registration of transfer,
the Trustees or the Securities Registrar shall treat the Person in whose name
any Trust Securities Certificate shall be registered in the Securities
Register as the owner of such Trust Securities Certificate for the purpose of
receiving distributions and for all other purposes whatsoever, and neither the
Trustees nor the Securities Registrar shall be bound by any notice to the
contrary.
Section 5.07. Access to List of Securityholders' Names and
Addresses. In addition to, and not by way of limitation of, the Depositor's
obligations under Section 312(a) of the Trust Indenture Act, the Depositor
shall furnish or cause to be furnished to the Property Trustee semi-annually,
not later than February 15 and August 15 of each year, a list in such form as
the Property Trustee may reasonably require, of the names and addresses of all
Owners of Preferred Securities. The Securities Registrar shall furnish or
cause to be furnished (x) to the Depositor, within 15 days after receipt by
the Securities Registrar of a request therefor from the Depositor in writing
and (y) to the Property Trustee, promptly after receipt by the Securities
Registrar of a request therefor from the Property Trustee , a list, in such
form as the Depositor or the Property Trustee (as applicable) may reasonably
require, of the names and addresses of the Securityholders as of the most
recent Record Date. In addition to, and not by way of limitation of, the
provisions of Section 312(b) of the Trust Indenture Act, if one or more
Holders of Trust Securities Certificates evidencing not less than 25% of the
Liquidation Amount of the outstanding Preferred Securities apply in writing to
the Securities Registrar, and such application states that the applicants
desire to communicate with other Securityholders with respect to their rights
under this Trust Agreement or under the Trust Securities Certificates, and
such application is accompanied by a copy of the communication that such
applicants propose to transmit, then the Securities Registrar shall, within
five Business Days after the receipt of such application, afford such
applicants access during normal business hours to the current list of
Securityholders. Each Holder, by receiving and holding a Trust Securities
Certificate, shall be deemed to have agreed not to hold either the Depositor
or the Securities Registrar accountable by reason of the disclosure of its
name and address, regardless of the source from which such information was
derived.
Section 5.08. Appointment of Paying Agent. The Paying Agent shall
make distributions to Securityholders from the Payment Account and shall
report the amounts of such distributions to the Property Trustee and the
Administrative Trustees. The Paying Agent shall have the revocable power to
withdraw funds from the Payment Account for the purpose of making the
distributions referred to above. The Administrative Trustees may revoke such
power and remove the Paying Agent if such Trustees determine in their sole
discretion that the Paying Agent shall have failed to perform its obligations
under this Agreement in any material respect. The Paying Agent shall initi-
ally be the Bank, and the Paying Agent may choose any co-paying agent that is
acceptable to the Administrative Trustees, the Property Trustee and the
Depositor. Any Person acting as a Paying Agent shall be permitted to resign
as Paying Agent upon 30 days' written notice to the Administrative Trustees,
the Property Trustee and the Depositor. In the event that the Bank shall no
longer be the Paying Agent or a successor Paying Agent shall resign or its
authority to act be revoked, the Administrative Trustees shall appoint a
successor that is acceptable to the Property Trustee and the Depositor to act
as Paying Agent (which shall be a bank, trust company or the Depositor). The
Administrative Trustees shall cause such successor Paying Agent or any co-
paying agent appointed by the Paying Agent to 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 Securityholders in trust for the benefit of the
Securityholders entitled thereto until such sums shall be paid to such
Securityholders. 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 8.01, 8.03 and 8.06 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 Agreement to the Paying Agent shall include any co-paying
agent unless the context requires otherwise.
Any Paying Agent shall hold in trust for the benefit of the
Preferred Securityholders all sums held by such Paying Agent for payment on
the Preferred Securities, and shall gave the Property Trustee notice of any
default hereunder by either the Trust or the Depositor.
Section 5.09. Book-Entry Preferred Securities Certificates; Common
Securities Certificate. (a) The Preferred Securities Certificates, upon
original issuance, will be issued in the form of a typewritten Preferred Secu-
rities Certificate or Certificates representing Book-Entry Preferred
Securities Certificates to be delivered to The Depository Trust Company, the
initial Clearing Agency, or to a custodian designated by it, by, or on behalf
of, the Trust. Such Preferred Securities Certificate or Certificates shall
initially be registered on the Securities Register in the name of Cede & Co.,
the nominee of the initial Clearing Agency, and no Owner will receive a
definitive Preferred Securities Certificate representing such Owner's interest
in such Preferred Securities, except as provided in Section 5.11. Unless and
until Definitive Preferred Securities Certificates have been issued to Owners
pursuant to Section 5.11:
(i) the provisions of this Section 5.09(a) shall be in full
force and effect;
(ii) the Securities Registrar, the Paying Agent and the Trust-
ees shall be entitled to deal with the Clearing Agency for all
purposes of this Trust Agreement relating to the Book-Entry
Preferred Securities Certificates (including the payment of
principal of and interest on the Book-Entry Preferred Securities and
the giving of instructions or directions to Owners of Book-Entry
Preferred Securities) as the sole Holder of Book-Entry Preferred
Securities, and shall have no obligations to the Owners thereof;
(iii) to the extent that the provisions of this Section 5.09
conflict with any other provisions of this Trust Agreement, the
provisions of this Section 5.09 shall control;
(iv) the rights of the Owners of the Book-Entry Preferred
Securities Certificates shall be exercised only through the Clearing
Agency and shall be limited to those established by law and
agreements between such Owners and the Clearing Agency and/or the
Clearing Agency Participants. Pursuant to the Certificate
Depository Agreement, unless and until Definitive Preferred
Securities Certificates are issued pursuant to Section 5.11, the
initial Clearing Agency will make book-entry transfers among the
Clearing Agency Participants and receive and transmit payments on
the Preferred Securities to such Clearing Agency Participants; and
(v) whenever this Trust Agreement requires or permits actions
to be taken based upon the instructions or directions of Holders of
Trust Certificates evidencing a specified percentage of the
aggregate Liquidation Amount, the Clearing Agency shall be deemed to
represent such percentage only to the extent that it has received
instructions to such effect from Owners and/or Clearing Agency
Participants owning or representing, respectively, such required
percentage of the beneficial interest in the applicable class of
Trust Certificates and has delivered such instructions to the
Administrative Trustees.
(b) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate. In the event that the Depositor shall transfer any of
its Common Securities, additional Common Securities Certificates, in
definitive form, may be issued if required.
Section 5.10. Notices to Clearing Agency. To the extent a notice
or other communication to the Owners is required under this Trust Agreement,
unless and until Definitive Preferred Securities Certificates shall have been
issued to Owners pursuant to Section 5.12, the Trustees shall give all such
notices and communications specified herein to be given to the Clearing
Agency, and shall have no obligations to the Owners.
Section 5.11. Definitive Preferred Securities Certificates. If
(i) the Depositor advises the Trustees in writing that the Clearing Agency is
no longer willing or able properly to discharge its responsibilities with
respect to the Preferred Securities Certificates, and the Depositor is unable
to locate a qualified successor, (ii) the Depositor at its option advises the
Trustees in writing that it elects to terminate the book-entry system through
the Clearing Agency or (iii) after the occurrence of an Event of Default,
Owners of Preferred Securities Certificates representing beneficial interests
aggregating at least a majority of the Liquidation Amount advise the Clearing
Agency in writing that the continuation of a book-entry system through the
Clearing Agency is no longer in the best interest of the Owners of Preferred
Securities Certificates, then the Clearing Agency shall notify all Owners of
Preferred Securities Certificates and the Trustees of the occurrence of any
such event and of the availability of the Definitive Preferred Securities
Certificates to Owners of such class or classes, as applicable, requesting the
same. Upon surrender to the Administrative Trustees by the Clearing Agency of
the typewritten Preferred Securities Certificate or Certificates representing
the Book-Entry Preferred Securities Certificates, accompanied by registration
instructions, the Administrative Trustees, or any one of them, shall execute,
by hand or by facsimile, the Definitive Preferred Securities Certificates in
accordance with the instructions of the Clearing Agency. Neither the
Securities Registrar nor the Trustees shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Preferred Securities Certificates, the Trustees shall recognize the Holders of
the Definitive Preferred Securities Certificates as Securityholders. The
Definitive Preferred Securities Certificates shall be printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable to
the Administrative Trustees, as evidenced by the execution thereof (by hand or
by facsimile) by the Administrative Trustees or any one of them.
Section 5.12. Rights of Securityholders. The legal title to the
Trust Property is vested exclusively in the Property Trustee (in its capacity
as such) in accordance with Section 2.09. The Securityholders shall not have
any right or title therein other than the beneficial interest in 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 rights and when issued and
delivered to Securityholders against payment of the purchase price therefor
will be fully paid and nonassessable by the Trust. The Holders of the Trust
Securities, in their capacities as such, shall, except as otherwise set forth
herein, 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.
The right of any Holder of Trust Securities to receive payment of
Distributions on the Trust Securities in accordance with this Declaration and
the terms of the Trust Securities on or after the respective payment dates
thereof, or to institute suit for the enforcement of any such payments on or
after such payment dates, shall not be impaired without the consent of each
such Holder.
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
Section 6.01. Limitations on Voting Rights. (a) Except as
provided in this Section, in Sections 8.10 and 10.02 hereof, and in the
Subordinated Indenture, and as otherwise required by law, no Holder of
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 Securityholders from time to time as partners or members
of an association.
(b) So long as any 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 executing any trust or power conferred on the Debenture
Trustee with respect to such Debentures, (ii) waive any past default which is
waivable under Section 513 of the Subordinated Indenture, (iii) exercise any
right to rescind or annul a declaration that the principal of all the
Debentures shall be due and payable or (iv) consent to any amendment,
modification or termination of the Subordinated Indenture or the 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 Outstanding Trust Securities; provided, however, that where a consent
under the Subordinated Indenture would require the consent of each holder of
Debentures affected thereby, no such consent shall be given by the Property
Trustee without the prior written consent of each holder of Trust Securities.
The Property Trustee shall not revoke any action previously authorized or
approved by a vote of the Trust Securities, except pursuant to a subsequent
vote of the Outstanding Trust Securities. The Property Trustee shall notify
all Holders of the Trust Securities of any notice of default received from the
Debenture Trustee with respect to the Debentures. In addition to obtaining
the foregoing approvals of the Holders of the Outstanding Trust 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 the Trust will not be classified as an association
taxable as a corporation for United States Federal income tax purposes on
account of such action.
(c) If any proposed amendment to the Trust Agreement provides for,
or the Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Trust
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
Outstanding Trust Securities. No amendment to this Trust Agreement may be
made if, as a result of such amendment, the Trust would be classified as an
association taxable as a corporation for United States Federal income tax
purposes.
Section 6.02. Notice of Meetings. Notice of all meetings of the
Preferred Securityholders, stating the time, place and purpose of the meeting,
shall be given by the Administrative Trustees pursuant to Section 10.07 to
each Trust Securityholder of record, at his or her registered address, at
least 15 days and not more than 90 days before the meeting. At any such
meeting, any business properly before the meeting may be so considered whether
or not stated in the notice of the meeting. Any adjourned meeting may be held
as adjourned without further notice.
Any and all notices to which any Trust Securityholder hereunder may
be entitled and any and all communications shall be deemed duly served or
given if mailed, postage prepaid, addressed to any Trust Securityholder of
record at his last known address as recorded on the Securities Register.
Section 6.03. Meetings of Trust Securityholders. No annual meeting
of Securityholders is required to be held. The Administrative Trustees,
however, shall call a meeting of Securityholders to vote on any matter upon
the written request of Trust Securityholders of record of 25% (based upon
aggregate Liquidation Amount) of the Outstanding Trust Securities, and the
Administrative Trustees or the Property Trustee may, at any time in their
discretion, call a meeting of Trust Securityholders to vote on any matters as
to which Trust Securityholders are entitled to vote.
Trust Securityholders holding of record of 50% or more of the Trust
Securities (based upon aggregate Liquidation Amount), present in person or by
proxy, shall constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by the
Outstanding Trust Securityholders of record present, in person or by proxy,
holding more than a majority of the Outstanding Trust Securities (based upon
aggregate Liquidation Amount) held by the Trust Securityholders of record
present, either in person or by proxy, at such meeting shall constitute the
action of the Securityholders, unless this Trust Agreement requires a greater
number of affirmative votes.
Section 6.04. Voting Rights. Securityholders shall be entitled to
one vote for each $25 of Liquidation Amount represented by their Trust
Securities in respect of any matter as to which such Securityholders are
entitled to vote. Securityholders' voting rights shall be as provided by
Section 316 of the Trust Indenture Act.
Section 6.05. Proxies, Etc. At any meeting of Securityholders, any
Securityholder entitled to vote thereat may vote by proxy, provided that no
proxy shall be voted at any meeting unless it shall have been placed on file
with the Administrative Trustees, or with such other officer or agent of the
Trust as the Administrative Trustees may direct, for verification prior to the
time at which such vote shall be taken. Pursuant to a request by the Property
Trustee, proxies may be solicited in the name of the Property Trustee or one
or more officers of the Property Trustee. Only Securityholders of record
shall be entitled to vote. When Trust Securities are held jointly by several
persons, any one of them may vote at any meeting in person or by proxy in
respect of such Trust Securities, but if more than one of them shall be
present at such meeting in person or by proxy, and such joint owners or their
proxies so present disagree as to any vote to be cast, such vote shall not be
received in respect of such Trust Securities. A proxy purporting to be
executed by or on behalf of a Securityholder shall be deemed valid unless
challenged at or prior to its exercise, and the burden of proving invalidity
shall rest on the challenger. No proxy shall be valid later than thirty-six
(36) full calendar months after its date of execution (or such shorter period
as may be provided therein).
Section 6.06. Securityholder Action by Written Consent. Any action
which may be taken by Securityholders at a meeting may be taken without a
meeting if Securityholders holding more than a majority of all Outstanding
Trust Securities (based upon aggregate Liquidation Amount) entitled to vote in
respect of such action (or such larger proportion thereof as shall be required
by any express provision of this Trust Agreement) shall consent to the action
in writing.
Section 6.07. Record Date for Voting and Other Purposes. For the
purposes of determining the Securityholders 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 Administrative Trustees may, in the circumstances permitted
under the Trust Indenture Act, from time to time fix a date, not more than
90 days prior to the date of any meeting of Securityholders, the payment of
any distribution or other action, as the case may be, as a record date for the
determination of the identity of the Securityholders of record for such
purposes. If not set by the Administrative Trustees prior to the first
solicitation of a Securityholder made by any Person in respect of any such
action, or, in the case of any such vote, prior to such vote, the record date
for any such action or vote shall be the 30th day (or, if later, the date of
the most recent list of Holders required to be provided pursuant to Section
800) prior to such first solicitation or vote, as the case may be. With
regard to any record date, only the Holders on such date (or their duly
designated proxies) shall be entitled to give or take, or vote on, the
relevant action.
Section 6.08. Acts of Securityholders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Trust Agreement to be given, made or taken by
Securityholders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Securityholders in person or by an
agent duly appointed in writing; and, except as otherwise expressly provided
herein, such action shall become effective when such instrument or instruments
are delivered to an Administrative Trustee. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Securityholders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Trust
Agreement and (subject to Section 8.01) conclusive in favor of the Trustees,
if made in the manner provided in this Section.
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 acknowledgements of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof.
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 or her authority. The fact and date of the execution
of any such instrument or writing, or the authority of the Person executing
the same, may also be proved in any other manner which any Trustee receiving
the same deems sufficient.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Securityholder of any Trust Security shall bind
every future Securityholder of the same Trust Security and the Securityholder
of 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 or the Trust in reliance thereon, whether
or not notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder
to take any action hereunder with regard to any particular Trust Security may
do so with regard to all or any part of the Liquidation Amount of such Trust
Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any part of such
Liquidation Amount.
If any dispute shall arise between the Securityholders and the
Administrative Trustees or among such Securityholders or Trustees with respect
to the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Securityholder
or Trustee under this Article VI, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
Section 6.09. Inspection of Records. Subject to Section 5.07
concerning access to the list of Securityholders, upon reasonable notice to
the Administrative Trustees and the Property Trustee, the other records of the
Trust shall be open to inspection by Securityholders during normal business
hours for any purpose reasonably related to such Securityholder's interest as
a Securityholder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF THE BANK
Section 7.01. Representations and Warranties. The Bank hereby
represents and warrants for the benefit of the Depositor and the Security-
holders that:
(a) the Bank is a banking corporation or trust company duly
organized, validly existing and in good standing under the laws of the
State of Delaware;
(b) the Bank has full corporate power, authority and legal right to
execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery
and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and
delivered by the Bank and constitutes the valid and legally binding
agreement of the Bank enforceable against it in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(d) the execution, delivery and performance by the Bank of this
Trust Agreement have been duly authorized by all necessary corporate
action on the part of the Bank and do not require any approval of
stockholders of the Bank, and such execution, delivery and performance
will not (i) violate the Bank's Charter or By-laws, (ii) violate any
provision of, or constitute, with or without notice or lapse of time, a
default under, or result in the creation or imposition of, any Lien on
any properties included in the Trust Property pursuant to the provisions
of, any indenture, mortgage, credit agreement, license or other agreement
or instrument to which the Bank is a party or by which it is bound, or
(iii) violate any law, governmental rule or regulation of the United
States or the State of Delaware governing the banking or trust powers of
the Bank or any order, judgment or decree applicable to the Bank;
(e) neither the authorization, execution or delivery by the Bank of
this Trust Agreement nor the consummation of any of the transactions by
the Bank contemplated herein or therein requires the consent or approval
of, the giving of notice to, the registration with or the taking of any
other action with respect to, any governmental authority or agency under
any existing Federal law governing the banking or trust powers of the
Bank or under the laws of the State of Delaware; and,
(f) there are no proceedings pending or, to the best of the Bank's
knowledge, threatened against or affecting the Bank in any court or
before any governmental authority, agency or arbitration board or
tribunal which, individually or in the aggregate, would materially and
adversely affect the Trust or would question the right, power and
authority of the Bank to enter into or perform its obligations as one of
the Trustees under this Trust Agreement.
ARTICLE VIII
THE TRUSTEES
Section 8.01. Certain Duties and Responsibilities. (a) The duties
and responsibilities of the Trustees shall be as provided by this Trust
Agreement and, in the case of the Property Trustee, by the Trust Indenture
Act. The Trustees shall have all the privileges, rights and immunities
provided by the Delaware Business Trust Act. Notwithstanding the foregoing,
no provision of this Trust Agreement shall require any of the Trustees to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it. To the extent that, at law or in equity, a
Trustee has duties (including fiduciary duties) and liabilities relating
thereto to the Trust or to the Securityholders, such Trustee shall not be
liable to the Trust or to any Securityholder for such Trustee's good faith
reliance on the provisions of this Trust Agreement. The provisions of this
Trust Agreement, to the extent that they restrict the duties and liabilities
of the Trustees otherwise existing at law or in equity, are agreed by the
Depositor and the Securityholders to replace such other duties and liabilities
of the Trustees. Whether or not therein expressly so provided, every provi-
sion of this Trust Agreement relating to the conduct or affecting the
liability of or affording protection to the Trustees shall be subject to the
provisions of this Section and, in the case of the Property Trustee, to the
provisions of the Trust Indenture Act.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the income and
proceeds from the Trust Property. Each Securityholder, by its acceptance of a
Trust Security, agrees that it will look solely to the income and proceeds
from the Trust Property to the extent legally available for distribution to it
as herein provided and that the Trustees are not 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 8.01(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.
(c) The Property Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Trust Agreement and no implied covenants shall be read into this Trust
Agreement against the Property Trustee. In case an Event of Default has
occurred (that 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 his or
her 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:
(i) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of
the Property Trustee, unless it shall be proved that the
Property Trustee was negligent in ascertaining the
pertinent facts;
(ii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of
not less than a majority in Liquidation Amount of the
Trust Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the
Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this Trust
Agreement;
(iii) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of
the Debentures and the Payment Account shall be to
deal with such Property in a similar manner as the
Property Trustee deals with similar property for its
own account, subject to the protections and
limitations on liability afforded to the Property
Trustee under this Trust Agreement and the Trust
Indenture Act;
(iv) the Property Trustee shall not be liable for any interest
on any money received by it except as it may otherwise
agree with the Depositor. Money held by the Property
Trustee need not be segregated from other funds held by it
except in relation to the Payment Account maintained by
the Property Trustee pursuant to Section 3.01 and except
to the extent otherwise required by law;
(v) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees
or the Depositor with their respective duties under this
Trust Agreement, nor shall the Property Trustee be liable
for the default or misconduct of the Administrative
Trustees or the Depositor; and,
(vi) the Property Trustee shall have no responsibility for the
genuineness, value or sufficiency of the Debentures, or
for the payment of any taxes assessed or levied thereon.
Section 8.02. Notice of Defaults. Within five Business Days after
the occurrence of any Event of Default actually known to the Property Trustee,
the Property Trustee shall transmit, in the manner and to the extent provided
in Section 10.07, notice of such Event of Default to the Securityholders, the
Administrative Trustees and the Depositor, unless such default shall have been
cured or waived. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time or both would become, an
Event of Default.
Section 8.03. Certain Rights of the Property Trustee. Subject to
the provisions of Section 8.01 and except as provided by law:
(a) the Property Trustee may rely and shall be protected in
acting or refraining from acting in good faith upon any resolution,
Opinion of Counsel, certificate, written representation of a Holder
or transferee, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond 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) if (i) in performing its duties under this Trust
Agreement the Property Trustee is required to decide between
alternative courses of action or (ii) in construing any of the
provisions in this Trust Agreement the Property Trustee finds the
same ambiguous or inconsistent with any other provisions contained
herein or (iii) the Property Trustee is unsure of the application of
any provision of this Trust Agreement, then, except as to any matter
as to which the Preferred Securityholders are entitled to vote under
the terms of this Trust Agreement, the Property Trustee shall
deliver a notice to the Depositor requesting written instructions of
the Depositor as to the course of action to be taken. The Property
Trustee shall take such action, or refrain from taking such action,
as the Property Trustee shall be instructed in writing to take, or
to refrain from taking, by the Depositor; provided, however, that if
the Property Trustee does not receive such instructions of the
Depositor within ten Business Days after it has delivered such
notice, or such reasonably shorter period of time set forth in such
notice (which to the extent practicable shall not be less than two
Business Days), it may, but shall be under no duty to, take or
refrain from taking such action not inconsistent with this Trust
Agreement as it shall deem advisable and in the best interests of
the Securityholders, in which event the Property Trustee shall have
no liability except for its own bad faith, negligence or willful
misconduct;
(c) any direction or act of the Depositor or the Administrative
Trustees contemplated by this Trust Agreement shall be sufficiently
evidenced by an Officer's Certificate;
(d) whenever in the administration of this Trust Agreement, the
Property Trustee shall deem it desirable that a matter be
established before undertaking, suffering or omitting any action
hereunder, the Property Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its
part, request and rely upon an Officer's Certificate which, upon
receipt of such request, shall be promptly delivered by the
Depositor or the Administrative Trustees;
(e) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any rerecording, refiling or reregistration
thereof;
(f) the Property Trustee may consult with counsel and the
written advice of such counsel shall be full and complete authori-
zation and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon; the
Property Trustee shall have the right at any time to seek
instructions concerning the administration of this Trust Agreement
from any court of competent jurisdiction;
(g) 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 of the Securityholders
pursuant to this Trust Agreement, unless such Securityholders 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;
(h) 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, consent, order, approval, bond, debenture, note or other
evidence of indebtedness or other paper or document, unless
requested in writing to do so by one or more Securityholders, but
the Property Trustee may make such further inquiry or investigation
into such facts or matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or
by or through its agents or attorneys, provided that the Property
Trustee shall be responsible for its own negligence or recklessness
with respect to selection of any agent or attorney appointed by it
hereunder;
(j) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other
action hereunder the Property Trustee (i) may request instructions
from the Holders of the Trust Securities which instructions may only
be given by the Holders of the same proportion in liquidation
amount of the Trust Securities as would be entitled to direct the
Property Trustee under the terms of the Trust Securities in respect
of such remedy, right or action, (ii) may refrain from enforcing
such remedy or right or taking such other action until such
instructions are received, and (iii) shall be protected in acting in
accordance with such instructions; and,
(k) except as otherwise expressly provided by this Trust Agreement,
the Property Trustee shall not be under any obligation to take any action
that is discretionary under the provisions of this Trust Agreement.
No provision of this Trust Agreement shall be deemed to impose any duty or
obligation on the Property Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property
Trustee shall be construed to be a duty.
Section 8.04. 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
do not assume any responsibility for their correctness. The Trustees shall
not be accountable for the use or application by the Trust of the proceeds of
the Trust Securities, provided that such use or application is in accordance
with Section 2.05.
Section. 8.05. May Hold Securities. Except as provided in the
definition of the term "Outstanding" in Article I, 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 may otherwise deal
with the Trust with the same rights it would have if it were not a Trustee or
such other agent.
Section 8.06. Compensation; Fees; Indemnity. The Depositor and the
Trust each agrees:
(1) to pay to the Trustees from time to time such
compensation as the Depositor and the Trustees shall from time to
time agree in writing for all services rendered by the Trustees
hereunder (which compensation shall not be limited by any provision
of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable expenses,
disbursements and advances incurred or made by the Trustees in
accordance with any provision of this Trust Agreement (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or bad faith; and
(3) to indemnify each of the Trustees or any predecessor
Trustee for, and to hold the Trustees harmless against, any and all
loss, damage, claims, liability, penalty or expense, including
taxes, other than taxes based on the income of the Trustee or
withholding taxes imposed with respect to payments on the Trust
Securities, incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or
administration of this Trust Agreement, including the 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. The provisions of this Section 8.06 shall survive
the termination of this Trust Agreement, and to secure the same, the
Property Trustee shall have a lien against the Trust Property which
lien shall be prior to the claims of the Securityholders.
Section 8.07. Corporate Property Trustee Required; Eligibility of
Trustees. (a) There shall at all times be a Property Trustee, qualified as
provided in Section 310(a) of the Trust Indenture Act, hereunder with respect
to the Trust Securities. The Property Trustee shall be a Person that has (a)
a combined capital and surplus of at least $50,000,000 and (b) an unsecured or
deposit rating of at least investment grade by each of Standard & Poor's
Corporation and Xxxxx'x Investors Services, Inc. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Person 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 with respect to
the Trust Securities 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.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative
Trustee shall be either a natural person who is at least 21 years of age
or a legal entity that shall act through one or more persons authorized
to bind such entity.
Section 8.08. Conflicting Interests. None of the Trust, Western
Resources or any person directly or indirectly controlling, controlled by or
under common control with either the Trust or Western Resources may serve as
Property Trustee hereunder. 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.
Section 8.09. Co-Trustees and Separate Trustees. Unless an Event
of Default shall have occurred and be continuing, at any time or times, for
the purpose of meeting the legal requirements of the Trust Indenture Act or of
any jurisdiction in which any part of the Trust Property may at the time be
located, the Depositor and the Administrative Trustees, by agreed action of
the majority of such Administrative Trustees, shall have power to appoint, and
upon the written request of the Administrative Trustees, the Depositor shall
for such purpose join with the Administrative Trustees in the execution,
delivery, and performance 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, of all or any part of
such Trust Property, or to act as separate trustee of any such property, in
accordance with Section 310(a) of the Trust Indenture Act, 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 does not join in such appointment within 15
days after the receipt by it of a request so to do, or in case a Debenture
Event of Default has occurred and is continuing, the Administrative Trustees
and the Property Trustee, respectively, alone shall have power to make such
appointment. Any co-trustee or separate trustee appointed pursuant to this
Section shall satisfy the requirements of Section 8.07.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming 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 terms,
namely:
(1) The Trust Securities shall be executed 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 Trustees specified
hereunder, shall be exercised, solely by such Trustees.
(2) 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 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.
(3) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the
Depositor, may accept the resignation of or remove any co-trustee or
separate trustee appointed under this Section, and, in case an Event
of Default under the Subordinated Indenture has occurred and is con-
tinuing, 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, delivery, and performance 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.
(4) 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 trustee hereunder.
(5) The Property Trustee shall not be liable by reason of any
act of a co-trustee or separate trustee.
(6) Any Act of Holders delivered to the Property Trustee
shall be deemed to have been delivered to each such co-trustee and
separate trustee. Upon receipt of such Act of Holders, the Property
Trustee shall promptly deliver a copy thereof to each such co-
trustee and separate trustee.
Section 8.10. Resignation and Removal; Appointment of Successor.
No resignation or removal of any Trustee (the "Relevant Trustee") and no
appointment of a successor Relevant Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Relevant
Trustee in accordance with the applicable requirements of Section 8.11.
The Relevant Trustee may resign at any time with respect to the
Trust Securities by giving written notice thereof to the Securityholders. If
the instrument of acceptance by a successor Relevant Trustee required by
Section 8.11 shall not have been delivered to the Relevant Trustee within 30
days after the giving of such notice of resignation, the resigning Relevant
Trustee may petition any court of competent jurisdiction for the appointment
of a successor Relevant Trustee with respect to the Trust Securities.
Unless an Event of Default shall have occurred and be continuing,
the Relevant Trustee may be removed at any time by the Depositor. If an Event
of Default shall have occurred and be continuing, the Relevant Trustee may be
removed at such time by Act of the Securityholders of a majority in aggregate
Liquidation Amount of the Trust Securities Certificates then Outstanding,
delivered to the Relevant Trustee (in its individual capacity and on behalf of
the Trust). In the event that any Securityholder is deemed to have waived the
right to act to remove the Relevant Trustee, then for the purpose of
determining whether a majority in aggregate Liquidation Amount of Trust
Security Certificates have acted to remove the Relevant Trustee, the Trust
Securities of such Securityholders shall be treated as if they are not
Outstanding.
If the Relevant Trustee shall resign, be removed or become incapable
of continuing to act as Relevant Trustee at a time when no Event of Default
shall have occurred and be continuing, the Depositor, by delivering notice to
the retiring Relevant Trustee, shall promptly appoint a successor Relevant
Trustee or Trustees with respect to the Trust Securities and the Trust, and
the retiring Relevant Trustee shall comply with the applicable requirements of
Section 8.11. If the Relevant Trustee shall resign, be removed or become
incapable of continuing to act as the Relevant Trustee at a time when an Event
of Default shall have occurred and be continuing, the Securityholders, by Act
of the Securityholders of a majority in Liquidation Amount of the Trust
Securities then Outstanding delivered to the retiring Relevant Trustee, shall
promptly appoint a successor Relevant Trustee or Trustees with respect to the
Trust Securities and the Trust, and the Relevant Trustee shall comply with the
applicable requirements of Section 8.11. In the event that any Securityholder
is deemed to have waived the right to appoint a successor Relevant Trustee or
Trustees with respect to the Trust Securities and the Trust, then for the
purpose of determining whether a majority in aggregate Liquidation Amount of
the Trust Securities then Outstanding have acted to appoint a successor
Relevant Trustee or Trustees with respect to the Trust Securities and the
Trust, the Trust Securities of such Securityholder shall be treated as if
they are not Outstanding. If no successor Relevant Trustee with respect to
the Trust Securities shall have been so appointed by the Depositor or the
Trust Securityholders and have accepted such appointment in the manner
required by Section 8.11, any Securityholder who has been a Securityholder of
Trust Securities for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Relevant Trustee with respect to the Trust
Securities.
The retiring Relevant Trustee shall give notice of each resignation
and each removal of such Relevant Trustee and each appointment of a successor
Relevant Trustee with respect to the Trust Securities and the Trust to all
Securityholders in the manner provided in Section 10.07 and to the Depositor.
Each notice shall include the name of the successor Relevant Trustee and the
address of its Corporate Trust Office.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Property Trustee who
is a natural person dies or becomes incompetent or incapacitated, the vacancy
created by such death, incompetence or incapacity may be filled by (i) the
unanimous act of remaining Administrative Trustees if there are at least two
of them or (ii) otherwise by the Depositor (with the successor in each case
being an individual who satisfies the eligibility requirement for
Administrative Trustees set forth in Section 8.07). Additionally,
notwithstanding the foregoing or any other provision of this Trust Agreement,
in the event the Depositor believes that any Administrative Trustee has become
incompetent or incapacitated, the Depositor, by notice to the remaining
Trustees, may terminate the status of such Person as an Administrative Trustee
(in which case the vacancy so created will be filled in accordance with the
preceding sentence).
Section 8.11. Acceptance of Appointment by Successor. In case of
the appointment hereunder of a successor Relevant Trustee with respect to all
Trust Securities and the Trust, every such successor Relevant Trustee so
appointed shall execute, acknowledge and deliver to the Trust and to the
retiring Relevant Trustee an instrument accepting such appointment, and there-
upon 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 charges due to such retiring Relevant Trustee, 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.
In case of the appointment hereunder of a successor Relevant Trustee
with respect to the Trust Securities and the Trust, the retiring Relevant
Trustee and each successor Relevant Trustee with respect to the Trust
Securities shall execute and deliver an amendment hereto wherein each
successor Relevant Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Relevant Trustee all the rights,
powers, trusts and duties of the retiring Relevant Trustee with respect to the
Trust Securities and the Trust and (2) shall add to or change any of the
provisions of this Trust Agreement as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Relevant Trustee, it being understood that nothing herein or in such amendment
shall constitute such Relevant Trustees co-trustees of the same trust and that
each such Relevant Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any
other such Relevant Trustee, and upon the execution and delivery of such
amendment the resignation or removal of the retiring Relevant Trustee shall
become effective to the extent provided therein and each 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 with respect to the Trust Securities and the Trust; but, on request of
the Trust or any successor Relevant Trustee, such retiring Relevant Trustee
shall duly assign, transfer and deliver to such successor Relevant Trustee all
Trust Property, all proceeds thereof and money held by such retiring Relevant
Trustee hereunder with respect to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the
Administrative Trustees on behalf of the Trust shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Relevant Trustee all such rights, powers and trusts referred to in
this Section 8.11.
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.
Section 8.12. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Property Trustee or any
Administrative Trustee which is not a natural person 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, shall be the successor of such 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.
Section 8.13. Preferential Collection of Claims Against Depositor
or Trust. If and when the Property Trustee shall be or become a creditor of
the Depositor or the Trust (or any other obligor upon the Debentures or the
Trust Securities), the Property Trustee shall be subject to the provisions of
the Trust Indenture Act regarding the collection of claims against the
Depositor or the Trust (or any such other obligor).
Section 8.14. Reports by the Property Trustee. (a) Within 60 days
after December 31 of each year commencing with December 31, 1995 the Property
Trustee shall transmit by mail to all Securityholders, as their names and
addresses appear in the Securities Register, and to the Depositor, a brief
report dated as of such December 31 with respect to:
(i) its eligibility under Section 8.07 or, in lieu thereof,
if to the best of its knowledge it has continued to be eligible
under said Section, a written statement to such effect; and
(ii) any action taken by the Property Trustee in the
performance of its duties hereunder which it has not previously
reported and which in its opinion materially affects the Trust
Securities.
(b) In addition the Property Trustee shall transmit to
Securityholders 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 each stock
exchange upon which the Trust Securities are listed, with the Commission and
with the Depositor.
Section 8.15. Reports to the Property Trustee. The Depositor and
the Administrative Trustees on behalf of the Trust shall provide to the
Property Trustee such documents, reports and information (if any) as may be
required by Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314 of the Trust Indenture Act, in each case
in the form, in the manner and at the times required by Section 314 of the
Trust Indenture Act.
Section 8.16. Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this 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 may be given in the form of an
Officers' Certificate.
Section 8.17. Number of Trustees. (a) The number of Trustees
shall be five (counting the Bank as Property Trustee), provided that the
Depositor, by written instrument, may increase or decrease the number of
Administrative Trustees.
(b) If a Trustee ceases to hold office for any reason, and the
number of Administrative Trustees is not reduced pursuant to Section 8.17(a),
or if the number of Trustees is increased pursuant to Section 8.17(a), a
vacancy shall occur. The vacancy shall be filled with a Trustee appointed in
accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not
operate to annul the Trust. Whenever a vacancy in the number of
Administrative Trustees shall occur, until such vacancy is filled by the
appointment of an Administrative Trustee in accordance with Section 8.10, the
Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Agreement), shall have all the
powers granted to the Administrative Trustees and shall discharge all the
duties imposed upon the Administrative Trustees by this Trust Agreement.
Section 8.18 Delegation of Power. (a) Any Administrative Trustee
may, by power of attorney consistent with applicable law, delegate to any
other natural person over the age of 21 his or her power for the purpose of
executing any documents contemplated in Section 2.07(a), including any
registration statement or amendment thereto filed with the Commission, or
making any other governmental filing; and
(b) The Administrative Trustees 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 Administrative Trustees or otherwise as the Administrative Trustees may
deem expedient, to the extent such delegation is not prohibited by applicable
law or contrary to the provisions of the Trust, as set forth herein.
ARTICLE IX
TERMINATION AND LIQUIDATION
Section 9.01. Termination upon Expiration Date. Unless earlier
terminated, the Trust shall automatically terminate on_________, 20__ (the
"expiration date"), following the distribution of the Trust Property in
accordance with Section 9.04.
Section 9.02. Early Termination. Upon the first to occur of any of
the following events (such first occurrence, an "Early Termination Event"):
(i) the occurrence of a Bankruptcy Event in respect of, or
the dissolution or liquidation of, a Common Securityholder;
(ii) the Depositor has elected to cause the Trust to be
dissolved pursuant to Section 4.02(b);
(iii) the redemption of all of the Preferred Securities; and
(iv) the issuance of an order for dissolution of the Trust by a
court of competent jurisdiction.
then the Trust shall automatically terminate following (except in the case of
clause (1)) the Distribution of the Trust Property in accordance with Section
9.04.
Section 9.03. Termination. Except in the case of a termination
pursuant to Section 9.02(i), the respective obligations and responsibilities
of the Trustees and the Trust created and continued hereby shall terminate
upon the latest to occur of the following: (i) the distribution by the
Property Trustee to Securityholders, upon the liquidation of the Trust pursu-
ant to Section 9.04, or upon the redemption of all of the Trust Securities
pursuant to Section 4.02, of all amounts required to be distributed hereunder
upon the final payment of the Trust Securities; (ii) the payment of any
expenses owed by the Trust; and (iii) the discharge of all administrative
duties of the Administrative Trustees, including the performance of any tax
reporting obligations with respect to the Trust and the Securityholders. In
the case of a termination pursuant to Section 9.02(i), the respective
obligations and responsibilities of the Trustees and the Trust created and
continued hereby shall terminate without any further action upon the
occurrence of the event specified in Section 9.02(i).
Section 9.04. Liquidation. (a) If an Early Termination Event
specified in clause (i) or (ii) of Section 9.02 occurs, the Trustees shall as
expeditiously as the Trustees determine to be practicable make a final
distribution (a "Final Distribution") distributing, subject to receipt of an
Opinion of Counsel as specified in Section 4.02(b), to each Securityholder a
Like Amount of Debentures, subject to Section 9.04(e). Notice of such Final
Distribution shall be given by the Administrative Trustees by first-class
mail, postage prepaid, mailed not later than 30 nor more than 60 days prior to
the Final Distribution Date to each Holder of Trust Securities at such
Holder's address appearing in the Securities Register. Any such notice of
Final Distribution shall:
(i) state the Liquidation Date;
(ii) state that from and after the Final Distribution 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 Debentures; and
(iii) provide such information with respect to the mechanics
by which Holders may exchange Trust Securities Certificates for
Debentures, or if Section 9.04(e) applies receive a Final
Distribution, as the Administrative Trustees or the Property Trustee
shall deem appropriate.
(b) If an early Termination Event specified in clause (i) of
Section 9.02 occurs, a Liquidating Trustee may be appointed (which Liquidating
Trustee may be the same Person as the Property Trustee) by Act of the
Securityholders of a majority in aggregate Liquidation Amount of the
Outstanding Trust Securities or by a court of competent juristiction. Any
such Liquidating Trustee shall (unless otherwise instructed by a court of
competent jurisdiction) distribute the Trust Property in substantially the
same manner as described in Section 9.04(a), (c) and (d), or, if deemed
appropriate by such Liquidating Trustee, shall liquidate the Trust Property
and distribute the proceeds in substantially the same manner as described in
Section 9.04(e).
(c) Except where Section 9.04(e) applies, in order to effect the
Final Distribution of the Debentures to Securityholders, the Property Trustee
shall establish a record date for such distribution (which shall be not more
than 45 days prior to the Final Distribution 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 Debentures in exchange for the Outstanding Trust Securities
Certificates.
(d) Except where Section 9.04(e) applies, after the Final
Distribution Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) certificates representing a Like Amount of Debentures will
be issued to Holders of Trust Securities Certificates, upon surrender of such
certificates to the Administrative Trustees or their agent for exchange, (iii)
Western Resources shall use its reasonable efforts to have the Debentures
listed on the New York Stock Exchange or on such other exchange as the
Preferred Securities are then listed, (iv) any Trust Securities Certificates
not so surrendered for exchange will be deemed to represent a Like Amount of
Debentures, accruing interest at the rate provided for in the Debentures from
the last Distribution Date on which a Distribution was made on such Trust
Certificates until such certificates are so surrendered (and until such
certificates are so surrendered, no payments of interest or principal will be
made to Holders of Trust Securities Certificates with respect to such
Debentures) and (v) all rights of Securityholders holding Trust Securities
will cease, except the right of such Securityholders to receive Debentures
upon surrender of Trust Securities Certificates.
(e) In the event that, notwithstanding the other provisions of this
Section 9.04, whether because of an order for dissolution entered by a court
of competent jurisdiction or otherwise, distribution of the Debentures in the
manner provided herein is determined by the Property Trustee (or the
Liquidating Trustee if one is appointed pursuant to Section 9.02(b)) not to be
practical, the Trust Property shall be liquidated, the proceeds distributed
and the Trust Certificates cancelled by the Property Trustee in such manner as
the Property Trustee determines. In such event, on the date specified by the
Property Trustee, Securityholders will be entitled to receive out of the
assets of the Trust available for distribution to Securityholders, after
satisfaction of liabilities to creditors, an amount equal to the Liquidation
Amount per Trust Security plus accrued and unpaid Distributions thereon to the
date of payment (such amount being the "Liquidation Distribution"). If the
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, 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 Holder of the Common Securities will be
entitled to receive Liquidation Distributions upon any such termination pro
rata (determined as aforesaid) with Holders of Preferred Securities, except
that, if an Event of Default has occurred and is continuing, the Preferred
Securities shall have a priority over the Common Securities.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01. Limitation on Rights of Securityholders. The death
or incapacity of any person having an interest, beneficial or otherwise, in a
Trust Security shall not operate to terminate this Trust Agreement, nor
entitle the legal representatives or heirs of such person or any
Securityholder 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 10.02. Amendment. (a) This Trust Agreement may be amended
from time to time by the Trustees and the Depositor, without the consent of
any Securityholders, (i) to cure any ambiguity, correct or supplement any
provision herein or therein which may be inconsistent with any other provision
herein or therein, or to make any other provisions with respect to matters or
questions arising under this Trust Agreement, which shall not be inconsistent
with the other provisions of this Trust Agreement or (ii) 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 classified for United States
Federal income tax purposes as an association taxable as a corporation 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 of 1940, as amended; provided, however, that such
amendment or action shall not adversely affect the rights of any
Securityholder and, in the case of clause (i), any amendments of this Trust
Agreement shall become effective only when notice thereof is given to the
Securityholders.
(b) Except as provided in Section 10.02(c) hereof, any provision of
this Trust Agreement may be amended by the Trustees and the Depositor with (i)
the consent of Trust Securityholders representing not less than a majority
(based upon Liquidation Amounts) of the Trust Securities then Outstanding 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 status as a grantor trust for
Federal income tax purposes or cause the Trust to fail or cease to qualify for
an exemption from the status of an "investment company" under the Investment
Company Act of 1940, as amended.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Securityholder (such
consent being obtained in accordance with Section 6.03 or 6.06 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 Securityholder to
institute suit for the enforcement of any such payment on or after such date.
Notwithstanding any other provision herein, without the unanimous consent of
the Securityholders (such consent being obtained in accordance with Section
6.03 or 6.06 hereof), paragraph (b) of this Section 10.02 may not be amended.
(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 an
exemption from status of an "investment company" under the Investment Company
Act of 1940, as amended.
(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the Depositor, this Trust Agreement may not
be amended in a manner which imposes any additional obligation on the
Depositor.
(f) In the event that any amendment to this Trust Agreement is
made, the Administrative Trustees shall promptly provide to the Depositor a
copy of such amendment.
(g) The Property Trustee shall not be required to enter into any
amendment to this Trust Agreement which affects its own rights, duties or
immunities under this Trust Agreement. The Property Trustee shall be entitled
to receive an Opinion of Counsel and an Officer's Certificate stating that any
amendment to this Trust Agreement is in compliance with this Trust Agreement.
Section 10.03. 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 10.04. Tax Elections. Each holder of Trust Securities,
including any subsequent holder of Trust Securities, by accepting a Trust
Security grants to the Depositor a power of attorney to file any election
(including any protective election) that is necessary or desirable to cause
the Trust to be treated for income tax purposes as a grantor trust and/or not
as an association taxable as a corporation.
Section 10.05. GOVERNING LAW. THIS TRUST AGREEMENT AND THE RIGHTS
AND OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST AND THE TRUSTEES
WITH RESPECT TO THIS TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
Section 10.06. Successors. This Trust Agreement shall be binding
upon and shall inure to the benefit of any successor to the Trust or the
Relevant Trustee or both, including any successor by operation of law.
Section 10.07. Headings. The Article and Section headings are for
convenience only and shall not affect the construction of this Trust
Agreement.
Section 10.08. Intention of Parties. It is the intention of the
parties hereto that the Trust not be classified for United States Federal
income tax purposes an association taxable as a corporation or partnership but
that the Trust be treated as a grantor trust for United States Federal income
tax purposes. The provisions of this Trust Agreement shall be interpreted to
further this intention of the parties.
Section 10.09. Notice and Demand. 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 any Securityholder or the Depositor
may be given or served in writing by deposit thereof, postage prepaid, in the
United States mail, hand delivery or facsimile transmission, in each case,
addressed, (i) in the case of a Preferred Securityholder, to such Preferred
Securityholder as such Securityholder's name and address may appear on the
Securities Register and (ii) in the case of the Common Securityholder or the
Depositor, to Western Resources, Inc., 000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxx
00000, Attention: Vice President, Finance, facsimile no. (000) 000-0000, with
a copy to the Secretary, facsimile no. (000) 000-0000. Such notice, demand or
other communication to or upon a Securityholder shall be deemed to have been
sufficiently given or made, for all purposes, upon hand delivery, mailing or
transmission.
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 or the Administrative Trustees shall be given
in writing addressed (until another address is furnished in writing) as
follows: (i) with respect to the Property Trustee, Wilmington Trust Company,
Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000,
Attention: Corporate Trust Administration; and (ii) with respect to the
Administrative Trustees, to them at the address above for notices to the
Depositor, marked "Attention: Administrative Trustees of Western Resources
Capital I, c/o Finance Department." 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 or the Property Trustee.
Section 10.10. Agreement Not to Petition. Each of the Trustees and
the Depositor agree for the benefit of the Securityholders 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, reorganization, arrangement,
insolvency, liquidation 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 10.08, the Property Trustee agrees, for the benefit of
Securityholders, that, at the expense of Depositor, the Property Trustee will
file an answer with the bankruptcy court or otherwise properly contest the
filing of such petition 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 Trustee or the Trust may assert. The
provisions of this Section 10.08 shall survive the termination of this Trust
Agreement.
Section 10.11. Trust Indenture Act; Conflict with Trust Indenture
Act.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and shall,
to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
Trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Trust
Agreement by any of the required provisions of the Trust Indenture Act, such
required provision shall control.
(d) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE
UNCONDITIONAL ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A
BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF
THIS TRUST AGREEMENT AND THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND
SUCH OTHERS THAT THOSE TERMS AND PROVISIONS SHALL BE BINDING, OPERATIVE AND
EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.
_____________
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Trust Agreement, in the case of Western Resources, the Bank and the Property
Trustee by their representatives thereunto duly authorized.
WESTERN RESOURCES, INC.
By: _____________________________________________
Name:
Title:
WILMINGTON TRUST COMPANY,
as Property Trustee
By: _____________________________________________
Name:
Title:
Xxxxxx X. Kitchen
as Administrative Trustee
Xxxxx X. Xxxxxx
as Administrative Trustee
Xxxx X. Xxxxxxxxx
as Administrative Trustee
EXHIBIT A
CERTIFICATE OF TRUST
OF
WESTERN RESOURCES CAPITAL I
THIS CERTIFICATE OF TRUST of Western Resources Capital I (the
"Trust"), dated October 12, 1995, is being duly executed and filed by the
undersigned, as trustee, to form a business trust under the Delaware Business
Trust Act (12 Del. Code Section 3801 et seq.).
1. Name. The name of the business trust being formed hereby is
Western Resources Capital I.
2. Delaware Trustee. The name and business address of the trustee
of the Trust with a principal place of business in the State of Delaware is
Wilmington Trust Company, Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Administration.
3. Effective Date. This Certificate of Trust shall be effective as
of its filing.
IN WITNESS WHEREOF, the undersigned, being the trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
WILMINGTON TRUST COMPANY,
as Trustee
By:
Name:
Title:
EXHIBIT B
CERTIFICATE DEPOSITORY AGREEMENT
_______ __, 1995
The Depository Trust Company,
00 Xxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000.
Attention: General Counsel's Office
Re: Western Resources Capital I ____% Cumulative Quarterly Income
Preferred Securities, Series A
Ladies and Gentlemen:
The purpose of this letter is to set forth certain matters relating
to the issuance and deposit with The Depository Trust Company ("DTC") of the
Western Resources Capital I ____% Cumulative Quarterly Income Preferred
Securities, Series A (the "Preferred Securities"), of Western Resources
Capital I, a Delaware business trust (the "Issuer"), formed pursuant to a
Trust Agreement between Western Resources, Inc. ("Western Resources") and
Wilmington Trust Company (the "Bank") and Xxxxxx X. Kitchen, Xxxxx X. Xxxxxx
and Xxxx X. Xxxxxxxxx, as Trustees. The payment of distributions on the
Preferred Securities and payments due upon liquidation of the Issuer or
redemption of the Preferred Securities are to be guaranteed by Western
Resources to the extent set forth in a Guarantee Agreement dated
_______________, ____ by Western Resources and Wilmington Trust Company, as
guarantee trustee, with respect to the Preferred Securities. Western
Resources and the Issuer propose to sell the Preferred Securities to certain
Underwriters (the "Underwriters") pursuant to an Underwriting Agreement dated
__________, _______ by and among the Underwriters, the Issuer and Western
Resources, and the Underwriters wish to take delivery of the Preferred
Securities through DTC.
To induce DTC to accept the Preferred Securities as eligible for
deposit at DTC, and to act in accordance with DTC's Rules with respect to the
Preferred Securities, the Issuer and Wilmington Trust Company make the
following representations to DTC:
1. Prior to the closing of the sale of the Preferred Securities to
the Underwriters, which is expected to occur on or about _____ __, _____,
there shall be deposited with DTC one or more global certificates
(individually and collectively, the "Global Certificate") registered in the
name of DTC's nominee, Cede & Co., representing an aggregate of up to ______
Preferred Securities and bearing the following legend:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Issuer or its agent for
registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co.
or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede &
Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE,
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
2. The Amended and Restated Trust Agreement of Western Resources
Capital I provides for the voting by holders of the Preferred Securities under
certain limited circumstances. The Issuer shall establish a record date for
such purposes and shall, to the extent possible, give DTC notice of such
record date not less than 15 calendar days in advance of such record date.
3. In the event of a stock split, conversion, recapitalization,
reorganization or any other similar transaction resulting in the cancellation
of all or any part of the Preferred Securities outstanding, the Issuer or the
Bank shall send DTC a notice of such event at least 5 business days prior to
the effective date of such event.
4. In the event of distribution on, or an offering or issuance of
rights with respect to, the Preferred Securities outstanding, the Issuer or
the Bank shall send DTC a notice specifying: (a) the amount of and conditions,
if any, applicable to the payment of any such distribution or any such
offering or issuance of rights; (b) any applicable expiration or deadline
date, or any date by which any action on the part of the holders of Preferred
Securities is required; and (c) the date any required notice is to be mailed
by or on behalf of the Issuer to holders of Preferred Securities or published
by or on behalf of the Issuer (whether by mail or publication, the
"Publication Date"). Such notice shall be sent to DTC by a secure means
(e.g., legible telecopy, registered or certified mail, overnight delivery) in
a timely manner designed to assure that such notice is in DTC's possession no
later than the close of business on the business day before the Publication
Date. The Issuer or the Bank will forward such notice either in a separate
secure transmission for each CUSIP number or in a secure transmission for
multiple CUSIP numbers (if applicable) that includes a manifest or list of
each CUSIP number submitted in that transmission. (The party sending such
notice shall have a method to verify subsequently the use of such means and
the timeliness of such notice.) The Publication Date shall be not less than
30 calendar days nor more than 60 calendar days prior to the payment of any
such distribution or any such offering or issuance of rights with respect to
the Preferred Securities. After establishing the amount of payment to be made
on the Preferred Securities, the Issuer or the Bank will notify DTC's Dividend
Department of such payment 5 business days prior to payment date. Notices to
DTC's Dividend Department by telecopy shall be sent to (000) 000-0000. Such
notices by mail or by any other means shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
0 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
The Issuer or the Bank shall confirm DTC's receipt of such telecopy
by telephoning the Dividend Department at (000) 000-0000.
5. In the event of a redemption by the Issuer of the Preferred
Securities, notice specifying the terms of the redemption and the Publication
Date of such notice shall be sent by the Issuer or the Bank to DTC not less
than 30 calendar days prior to such event by a secure means in the manner set
forth in paragraph 4. Such redemption notice shall be sent to DTC's Call
Notification Department at (000) 000-0000 or (000) 000-0000, and receipt of
such notice shall be confirmed by telephoning (000) 000-0000. Notice by mail
or by any other means shall be sent to:
Call Notification Department
The Depository Trust Company
000 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxx 00000-0000
6. In the event of any invitation to tender the Preferred
Securities, notice specifying the terms of the tender and the Publication Date
of such notice shall be sent by the Issuer or the Bank to DTC by a secure
means and in a timely manner as described in paragraph 4. Notices to DTC
pursuant to this paragraph and notices of other corporate actions (including
mandatory tenders, exchanges and capital changes), shall be sent, unless
notification to another department is expressly provided for herein, by
telecopy to DTC's Reorganization Department at (000) 000-0000 or (212) 709-
1094 and receipt of such notice shall be confirmed by telephoning
(000) 000-0000, or by mail or any other means to:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
0 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
7. All notices and payment advices sent to DTC shall contain the
CUSIP number or numbers of the Preferred Securities and the accompanying
designation of the Preferred Securities, which, as of the date of this letter,
is "Western Resources Capital I ____% Cumulative Quarterly Income Preferred
Securities, Series A."
8. Distribution payments or other cash payments with respect to
the Preferred Securities evidenced by the Global Certificate shall be governed
by DTC's current Principal and Income Payments Rider, a copy of which is
attached hereto as Annex I. For purposes of this letter, the term "Agent"
used in Annex I shall be deemed to refer to the Bank.
9. DTC may direct the Issuer and the Bank to use any other
telecopy number or address of DTC as the number or address to which notices or
payments may be sent.
10. In the event of a conversion, redemption, or any other similar
transaction (e.g., tender made and accepted in response to the Issuer's or the
Bank's invitation) necessitating a reduction in the aggregate number of
Preferred Securities outstanding evidenced by the Global Certificate, DTC, in
its discretion: (a) may request the Issuer or the Bank to issue and
countersign a new Global Certificate; or (b) may make an appropriate notation
on the Global Certificate indicating the date and amount of such reduction.
11. DTC may discontinue its services as a securities depositary
with respect to the Preferred Securities at any time by giving reasonable
prior written notice to the Issuer and the Bank at which time DTC will confirm
with the Issuer or the Bank the aggregate number of Preferred Securities
deposited with it) and discharging its responsibilities with respect thereto
under applicable law. Under such circumstances, the Issuer may determine to
make alternative arrangements for book-entry settlement for the Preferred
Securities, make available one or more separate global certificates evidencing
Preferred Securities to any Participant having Preferred Securities credited
to its DTC account, or issue definitive Preferred Securities to the beneficial
holders thereof, and in any such case, DTC agrees to cooperate fully with the
Issuer and the Bank and to return the Global Certificate, duly endorsed for
transfer as directed by the Issuer or the Bank, together with any other
documents of transfer reasonably requested by the Issuer or the Bank.
12. In the event that the Issuer determines that beneficial owners
of Preferred Securities shall be able to obtain definitive Preferred
Securities, the Issuer or the Bank shall notify DTC of the availability of
certificates. In such event, the Issuer or the Bank shall issue, transfer and
exchange certificates in appropriate amounts, as required by DTC and others,
and DTC agrees to cooperate fully with the Issuer and the Bank and to return
the Global Certificate, duly endorsed for transfer as directed by the Issuer
or the Bank, together with any other documents of transfer reasonably
requested by the Issuer or the Bank.
13. This letter may be executed in any number of counterparts, each
of which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
Nothing herein shall be deemed to require the Bank to advance funds
on behalf of the Issuer.
Very truly yours,
WESTERN RESOURCES CAPITAL I
(As Issuer)
By: Western Resources, Inc., Depositor
By:
Name:
Title:
WILMINGTON TRUST COMPANY
Property Trustee
By:
Name:
Title:
RECEIVED AND ACCEPTED: WILMINGTON TRUST COMPANY
THE DEPOSITORY TRUST COMPANY
By:
Name:
By: ________________________________ Title:
Authorized Officer
EXHIBIT C
PRINCIPAL AND INCOME PAYMENTS RIDER
1. This Rider supersedes any contradictory language set forth in the
Letter of Representations to which it is appended.
2. With respect to principal and income payments in the Securities:
A. DTC shall receive all dividend and interest payments on payable
date in same-day funds by 2:30 p.m. ET (Eastern Time).
B. Issuer agrees that it or Agent shall provide dividend and
interest payment information to a standard announcement service
subscribed to by DTC. In the unlikely event that no such
service exists, Issuer agrees that it or Agent shall provide
this information directly to DTC in advance of the dividend or
interest record date as soon as the information is available.
This information should be conveyed directly to DTC
electronically. If electronic transmission is not possible,
such information should be conveyed by telephone or facsimile
transmission to:
The Depository Trust Company
Manager, Announcements
Dividend Department
0 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000, 1686
C. Issuer agrees that for dividend and interest payments, it or
Agent shall provide automated notification of CUSIP-level
detail to the depository no later than noon ET on the payment
date.
D. DTC shall receive maturity and redemption payments and CUSIP-
level detail on the payable date in same-day funds by 2:30 p.m.
ET. Absent any other arrangements between Agent and DTC, such
payments shall be wired according to the following
instructions:
Chemical Bank
ABA 000000000
For credit to A/C Depository Trust Company
Redemption Account 066-027306
in accordance with existing SDFS payment procedures in the
manner set forth in DTC's SDFS Paying Agent Operating
Procedures a copy of which has previously been furnished to
Agent.
E. DTC shall receive all other payments and CUSIP-level detail
resulting from corporate actions (such as tender offers or
mergers) on the first payable date in same-day funds by 2:30
p.m. ET. Absent any other arrangements between the Agent and
DTC, such payments shall be wired to the following address:
Chemical Bank
ABA 000000000
For credit to A/C Depository Trust Company
Reorganization Account 066-027608
EXHIBIT D
REPRESENTATIONS FOR DEPOSIT/WITHDRAWAL AT CUSTODIAN ("DWAC") --
to be included in DTC Letter of Representations
The Security certificate(s) shall remain in Agent's custody as a "Balance
Certificate" subject to the provisions of the Balance Certificate Agreement
between Agent and DTC currently in effect.
On each day on which Agent is open for business and on which it receives
an instruction originated by a Participant through DTC's Deposit/Withdrawal at
Custodian ("DWAC") system to increase the Participant's account by a specified
number of shares, units, or obligations (a "Deposit Instruction"), Agent
shall, before 6:30 p.m. (Eastern Time) that day, either approve or cancel the
Deposit Instruction through the DWAC system.
On each day on which Agent is open for business and on which it receives
an instruction originated by a Participant through the DWAC system to decrease
the Participant's account by a specified number of shares, units, or
obligations (a "Withdrawal Instruction"), Agent shall, before 6:30 p.m.
(Eastern Time) that day, either approve or cancel the Withdrawal Instruction
through the DWAC system.
Agent agrees that its approval of a Deposit or Withdrawal Instruction
shall be deemed to be the receipt by DTC of a new, reissued or reregistered
certificated security on registration of transfer to the name of Cede & Co.
for the quantity of Securities evidenced by the Balance Certificate after the
Deposit or Withdrawal Instruction is effected.
EXHIBIT E
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Number of Common Securities
C-1
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
WESTERN RESOURCES CAPITAL I
Common Securities, Series A
(liquidation amount U.S. $25 per Common Security)
Western Resources Capital I, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), hereby certifies that Western
Resources, Inc. (the "Holder") is the registered owner of ________ common
securities of the Trust representing beneficial interests in the Trust and
designated the Common Securities (liquidation amount U.S. $25 per Common
Security) (the "Common Securities"). In accordance with Section 5.10 of the
Trust Agreement (as defined below) the Common Securities are not transferable
and any attempted transfer hereof shall be void. The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Common Securities are set forth in, and this certificate and the 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"), including the designation of the terms of the
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.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust
has executed this certificate this ___ day of ______,_____.
Western Resources Capital I
By:
Administrative Trustee
EXHIBIT F
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of _________,______, between Western Resources,
Inc., a Kansas corporation ("Western Resources"), and Western Resources
Capital I, a Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue its Common Securities (the
"Common Securities") to and receive Debentures from Western Resources and to
issue and sell Western Resources Capital I, ___% Cumulative Quarterly Income
Preferred Securities, Series A (the "Preferred Securities") with such powers,
preferences and special rights and restrictions as are set forth in 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");
WHEREAS, Western Resources is the issuer of the Debentures;
NOW, THEREFORE, in consideration of the purchase by each holder of
the Preferred Securities, which purchase Western Resources hereby agrees shall
benefit Western Resources and which purchase Western Resources acknowledges
will be made in reliance upon the execution and delivery of this Agreement,
Western Resources and the Trust hereby agree as follows:
ARTICLE I
Section 1.01. Guarantee by Western Resources. Subject to the terms
and conditions hereof, Western Resources hereby irrevocably and
unconditionally guarantees to each person or entity to whom the Trust is now
or hereafter becomes indebted or liable (the "Creditors") the full payment,
when and as due, of any and all Obligations (as hereinafter defined) to such
Creditors. As used herein, "Obligations" means any indebtedness, expenses or
liabilities of the Trust, other than obligations of the Trust to pay to
holders of any Preferred Securities or other similar interests in the Trust
the amounts due such holders pursuant to the terms of the Preferred Securities
or such other similar interests, as the case may be. This Agreement is
intended to be for the benefit of, and to be enforceable by, all such
Creditors, whether or not such Creditors have received notice hereof.
Section 1.02. Term of Agreement. This Agreement shall terminate
and be of no further force and effect upon the date on which there are no
Creditors remaining; provided, however, that this Agreement shall continue to
be effective or shall be reinstated, as the case may be, if at any time any
Creditor must restore payment of any sums paid under any Obligation for any
reason whatsoever. This Agreement is continuing, irrevocable, unconditional
and absolute.
Section 1.03. Waiver of Notice. Western Resources hereby waives
notice of acceptance of this Agreement and of any Obligation to which it
applies or may apply, and Western Resources hereby waives presentment, demand
for payment, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
Section 1.04. No Impairment. The obligations, covenants,
agreements and duties of Western Resources under this Agreement shall in no
way be affected or impaired by reason of the happening from time to time of
any of the following:
(a) the extension of time for the payment by the Trust of all or
any portion of the Obligations or for the performance of any other obligation
under, arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part
of the Creditors to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Creditors with respect to the Obligations or any
action on the part of the Trust granting indulgence or extension of any kind;
or
(c) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or readjustment
of debt or, or other similar proceedings affecting, the Trust or any of the
assets of the Trust.
There shall be no obligation of the Creditors to give notice to, or obtain the
consent of, Western Resources with respect to the happening of any of the
foregoing.
Section 1.05. Enforcement. A Creditor may enforce this Agreement
directly against Western Resources and Western Resources waives any right or
remedy to require that any action be brought against the Trust or any other
person or entity before proceeding against Western Resources.
ARTICLE II
Section 2.01. Binding Effect. All guarantees and agreements
contained in this Agreement shall bind the successors, assigns, receivers,
trustees and representatives of Western Resources and shall inure to the
benefit of the Creditors.
Section 2.02. Amendment. So long as there remains any Creditor or
any Preferred Securities of any series are outstanding, this Agreement shall
not be modified or amended in any manner adverse to such Creditor or to the
holders of the Preferred Securities.
Section 2.03. Notices. Any notice, request or other communication
required or permitted to be given hereunder shall be given in writing by
delivering the same against receipt therefor by facsimile transmission
(confirmed by mail), telex or by registered or certified mail, addressed as
follows (and if so given, shall be deemed given when mailed or upon receipt of
an answer-back, if sent by telex), to wit:
Western Resources Capital I
Wilmington Trust Company
Xxxxxx Square North,
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
and copies to:
Western Resources, Inc.
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Vice President, Finance
(with a copy sent to the same address marked to the
attention of the the Administrative Trustees)
Facsimile No.: (000) 000-0000
Section 2.04 THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF KANSAS.
THIS AGREEMENT is executed as of the day and year first above
written.
WESTERN RESOURCES, INC.
By:
Name:
Title:
WESTERN RESOURCES CAPITAL I
By:
Administrative Trustee
EXHIBIT G
This Preferred Security is a Global Certificate within the meaning
of the Trust Agreement hereinafter referred to and is registered in the name
of The Depository Trust Company (the "Depository") or a nominee of the
Depository. This Preferred Security is exchangeable for Preferred Securities
registered in the name of a person other than the Depository or its nominee
only in the limited circumstances described in the Trust Agreement and no
transfer of this Preferred Security (other than a transfer of this Preferred
Security as a whole by the Depository to a nominee of the Depository or by a
nominee of the Depository to the Depository or another nominee of the
Depository) may be registered except in limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York
City) to Western Resources Capital I or its agent for registration of
transfer, exchange or payment, and any Preferred Security issued is registered
in the name of Cede & Co. or such other name as requested by an authorized
representative of The Depository Trust Company and any payment hereon is made
to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY A PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.
Certificate Number Number of Preferred Securities
P- CUSIP NO.
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
WESTERN RESOURCES CAPITAL I
____% Cumulative Quarterly Income Preferred Securities, Series A
(liquidation amount U.S. $25 per Preferred Security)
Western Resources Capital, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), hereby certifies that Cede &
Co. (the "Holder") is the registered owner of ________ preferred securities of
the Trust representing a beneficial ownership interest in the Trust and
designated the Western Resources Capital I ____% Cumulative Quarterly Income
Preferred Securities, Series A (liquidation amount U.S. $25 per Preferred
Security) (the "Preferred Securities"). The Preferred Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer as provided in Section 5.04 of the Trust Agreement
(as defined below). The designations, rights, privileges, restrictions,
preferences and other terms and provisions of the Preferred Securities are set
forth in, and this certificate and the 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")
including the designation of the terms of Preferred Securities as set forth
therein. The holder of this certificate is entitled to the benefits of the
Guarantee Agreement entered into by Western Resources, Inc., a Kansas
corporation, and Wilmington Trust Company, as guarantee trustee, dated as of
_____ __,______ (the "Guarantee") to the extent provided therein. The Trust
will furnish a copy of the Trust Agreement and the Guarantee to the holder of
this certificate without charge upon written request to the Trust at its
principal place of business or registered office.
Upon receipt of this certificate, the holder of this certificate is
bound by the Trust Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust
has executed this certificate this ___ day of _______,______.
Western Resources Capital I
By:
Administrative Trustee
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this 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 Preferred Security Certificate on the
books of the Trust. The agent may substitute another to act for
him or her.
Date:_______________________
Signature:_______________________________________
(Sign exactly as your name appears on the other side of this
Preferred Security Certificate)
