INDEX TO EXHIBITS
Sequentially
Exhibit Numbered
Number Exhibit Page
- ------ ------- ----
1 -- Standard Purchase Agreement (1)
2 -- Agreement and Plan of Merger between Western Resources, Inc.,
Kansas Gas and Electric Company, NKC, Inc. and Kansas City
Power & Light Company, dated as of March 18, 1998 (2)
4(a) -- Form of Indenture for Debt Securities (1)
4(b) -- Form of Securities Resolution (1)
5 -- Opinion of Richard D. Terrill, Esq. (1)
12 -- Computation of Ratio of Earnings to Fixed Charges (2)
23(a) -- Consent of Richard D. Terrill, Esq. (contained in
Exhibit 5) (1)
23(b) -- Consent of Arthur Andersen LLP (1)
23(c) -- Consent of Pricewaterhouse Coopers LLP(1)
24 -- Power of Attorney (set forth on the signature page of
this Registration Statement)
25 -- Statement of Eligibility of Trustee regarding Form of
Indenture of Debt Securities(1)
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(1) Filed herewith.
(2) Incorporated by reference to exhibits previously filed with the Commission
as follows:
Exhibit Number
In this Registration Former Exhibit File
Statement Reference Reference
2 99 Form 8-K, dated March 23, 1998**
12 12 Form 10-Q, Quarter ended
March 31, 1998**
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(*) Registration Statements under the Securities Act of 1933.
(**) File No. 1-3523 under the 1934 Act .
E-1
Exhibit 1
WESTERN RESOURCES, INC.
DEBT SECURITIES
STANDARD PURCHASE PROVISIONS
INCLUDING
FORM OF PURCHASE AGREEMENT
WESTERN RESOURCES, INC.
STANDARD PURCHASE PROVISIONS
From time to time, Western Resources, Inc., a corporation organized and
existing under the laws of the State of Kansas (the "Company") may enter into
purchase agreements that provide for the sale of designated securities to the
purchaser or purchasers named therein. The standard provisions set forth herein
may be incorporated by reference in any such purchase agreement (the "Purchase
Agreement"). The Purchase Agreement, including the provisions incorporated
therein by reference, is herein sometimes referred to as "this Agreement." The
term "Debt Securities" shall mean the Debt Securities of the Company to be sold
by the Company pursuant to the applicable Purchase Agreement. Unless otherwise
defined herein, terms defined in the Purchase Agreement are used herein as
therein defined.
The Company has filed, in accordance with the provisions of the Securities
Act of 1933, as amended, and the rules and regulations thereunder (collectively
called the "Act"), with the Securities and Exchange Commission (the
"Commission"), a registration statement on Form S-3 (including a prospectus),
relating to the Debt Securities, which pursuant to Item 12 of Form S-3
incorporates by reference documents which the Company and others have filed in
accordance with the provisions of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder (collectively called the
"Exchange Act") relating to the Company or other companies involved in
transactions involving the Company. Such registration statement has been
declared effective by the Commission. Promptly upon the execution of this
Agreement, the Company will prepare a prospectus supplement relating to the Debt
Securities (the "Prospectus Supplement"). The Company has furnished to you, for
use by the Underwriters (as defined herein) and dealers, copies of one or more
preliminary prospectuses and the documents so incorporated therein (each
thereof, including the documents so incorporated therein, is herein called the
"Preliminary Prospectus").
1. Introductory. The Company proposes to issue and sell from time to time
Debt Securities registered under the Registration Statement. The Debt Securities
will be issued pursuant to the Indenture (the "Indenture"), dated August [ ],
1998, between the Company and [ ], as Indenture Trustee (the "Indenture
Trustee"), as supplemented, including by a
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supplemental indenture pertaining to the particular series of Debt Securities
involved in the offering, and will have varying designations, interest rates and
times of payment of any interest, maturities, redemption, put and call
provisions and other terms, including, if specified with respect to a series,
with all such terms for any particular series of the Debt Securities being
determined at the time of the sale and set forth in the Purchase Agreement and
the Prospectus Supplement relating to such series of Debt Securities. The Debt
Securities involved in any such offering are hereinafter referred to as the
"Purchased Debt Securities," and the firm or firms, as the case may be, which
agree to purchase the same are hereinafter referred to as the "Underwriters" of
the Purchased Debt Securities. The terms "you" and "your" refer to those
Underwriters who sign the Purchase Agreement either on behalf of themselves only
or on behalf of themselves and as representatives of the several Underwriters
named in Schedule A thereto, as the case may be. Purchased Debt Securities to be
purchased by Underwriters are herein referred to as "Underwriters' Debt
Securities," and any Purchased Debt Securities to be purchased pursuant to
Delayed Delivery Contracts (as defined below) as hereinafter provided are herein
referred to as "Contract Debt Securities."
2. Delivery and Payment. The Company will deliver the Underwriters' Debt
Securities to you for the accounts of the Underwriters at the place specified in
the Purchase Agreement, against payment of the purchase price by certified or
bank cashier's check in same day or New York Clearing House funds (as agreed to
by the parties and specified in the Purchase Agreement) drawn to the order of
the Company, at the time set forth in this Agreement or at such other time not
later than seven full business days thereafter as you and the Company determine,
such time being herein referred to as the "time of purchase." Unless otherwise
provided for in the Purchase Agreement, the Underwriters' Debt Securities so to
be delivered will be in definitive fully registered form registered in such
authorized denominations and in such names as you request in writing not later
than 10:00 A.M.,* on the third business day prior to the time of purchase, or,
if no such request is received, in the names of the respective Underwriters in
the amounts agreed to be purchased by them pursuant to this Agreement. For the
purpose of expediting the checking of the Under-
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* Times mentioned herein are New York City Time.
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writers' Debt Securities, the Company agrees to make the Underwriters' Debt
Securities available to you (at the place specified in the Purchase Agreement)
in definitive form not later than 10:00 A.M. on the first business day preceding
the time of purchase.*
If any Purchase Agreement provides for sales of Purchased Debt Securities
pursuant to delayed delivery contracts, the Company authorizes the Underwriters
to solicit offers to purchase Contract Debt Securities pursuant to delayed
delivery contracts substantially in the form of Schedule I attached hereto (the
"Delayed Delivery Contracts") with such changes therein as the Company may
approve. Delayed Delivery Contracts are to be with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies, and educational and charitable institutions. At the time
of purchase the Company will pay you as compensation, for the accounts of the
Underwriters, the compensation set forth in such Purchase Agreement in respect
of the principal amount of Contract Debt Securities. The Underwriters will not
have any responsibility in respect of the validity or the performance of Delayed
Delivery Contracts. If the Company executes and delivers Delayed Delivery
Contracts, the Contract Debt Securities shall be deducted from the Purchased
Debt Securities to be purchased by the several Underwriters and the aggregate
principal amount of Purchased Debt Securities to be purchased by each
Underwriter shall be reduced pro rata in proportion to the principal amount of
Purchased Debt Securities set forth opposite each Underwriter's name in such
Purchase Agreement, except to the extent that you determine that such reduction
shall be otherwise allocated and so advise the Company.
3. Certain Covenants of the Company. The Company agrees:
(a) As soon as possible after the execution and delivery of this
Agreement to file the Prospectus with the Commission pursuant to its Rule
424 under the Act and, if and when required at any time after such
execution and delivery, to file amendments to the applications the Company
has previously filed with any state regulatory agencies
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* As used herein, "business day" shall mean a day on which the New York Stock
Exchange is open for trading.
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having jurisdiction over the Company's issuance of its securities setting
forth, among other things, the necessary information with respect to the
price and terms of the offering of the Purchased Debt Securities;
(b) To file no amendment or supplement to the Registration Statement
or Prospectus subsequent to the execution of this Agreement to which you
object in writing unless, in the opinion of counsel to the Company, such
filing is required by law;
(c) To furnish such proper information as may be required and
otherwise to cooperate in qualifying the Purchased Debt Securities for sale
under the laws of such jurisdictions as you may designate and in
determining their eligibility for investment under the laws of such
jurisdictions; provided that the Company shall not hereby be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(d) To the extent not previously furnished to you, to furnish to you
two signed copies of the Registration Statement, as initially filed with
the Commission, of all amendments thereto, and of all documents
incorporated by reference therein (including all exhibits filed therewith,
other than exhibits which have previously been furnished to you and
exhibits incorporated by reference in such documents), and to furnish to
you sufficient unsigned copies of the foregoing (other than exhibits) for
distribution of a copy to you and to each of the other Underwriters (if
any);
(e) To deliver to the Underwriters without charge as soon as
practicable after the execution and delivery of this Agreement and
thereafter from time to time to furnish to the Underwriters, without
charge, as many copies of the Prospectus in final form and any documents
incorporated by reference therein at or after the date thereof (and of the
Registration Statement as amended or supplemented, if the Company shall
have made any amendment or supplement after the effective date of the
Registration Statement) as you or the respective Underwriters may
reasonably request for the purposes contemplated by the Act;
(f) To advise you promptly (confirming such advice in writing) of any
official request made by the Commission for amendments to the Registration
Statement or Prospectus or for additional information with respect thereto,
or of
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official notice of institution of proceedings for, or the entry of, a stop
order suspending the effectiveness of the Registration Statement and, if
such a stop order should be entered by the Commission, to make every
reasonable effort to obtain the lifting or removal thereof as soon as
possible, or of the suspension of qualification of the Purchased Debt
Securities for offering or sale in any jurisdiction or of the initiation or
threatening of any proceeding for any such purpose;
(g) To advise the Underwriters of the happening of any event known to
the Company within the time during which a prospectus relating to the
Purchased Debt Securities is required to be delivered under the Act which,
in the judgment of the Company, would require the making of any change in
the Prospectus or any amended or supplemented Prospectus or in the
information incorporated by reference therein so that as thereafter
delivered to purchasers such Prospectus will not include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and on request to prepare and
furnish to the Underwriters and to dealers and other persons designated by
you such amendments or supplements (including appropriate filings under the
Exchange Act) to the Prospectus as may be necessary to reflect any such
change, provided that the Company shall be so obligated subsequent to the
time of purchase only so long as the Company is notified of unsold
allotments (failure by the Underwriters to so notify the Company cancels
the Company's obligation under this Section 3(g));
(h) As soon as practicable, to make generally available to its
security holders an earnings statement (as contemplated by Rule 158 under
the Act) covering a period of twelve months after the effective date (as
the term "effective date" is defined in Rule 158) of the Registration
Statement;
(i) To pay the reasonable fees and expenses of counsel for the
Underwriters, and to reimburse the Underwriters for their reasonable
out-of-pocket expenses incurred in contemplation of the performance of this
Agreement, in the event that the Underwriters' Debt Securities are not
delivered to and taken up and paid for by the Underwriters hereunder for
any reason whatsoever except the failure or refusal of any Underwriter to
take up and pay for Under-
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writers' Debt Securities for some reason not permitted by the terms of this
Agreement, the Underwriters agreeing to pay the fees and expenses of
counsel for the Underwriters in any other event;
(j) To pay all expenses, fees and taxes (other than transfer taxes and
fees and disbursements of counsel for the Underwriters, except as set forth
under 3(i) above or (iv) below) in connection with (i) the preparation and
filing of the Registration Statement, each Preliminary Prospectus and the
Prospectus, any documents incorporated by reference therein at or after the
date thereof and any amendments or supplements thereto, and the printing
and furnishing of copies of each thereof to the Underwriters and to
dealers, (ii) the issue, sale and delivery of the Purchased Debt
Securities, (iii) the printing and reproduction of this Agreement and the
opinions and letters referred to in Section 4(a) hereof, (iv) the
qualification of the Purchased Debt Securities for sale and determination
of their eligibility for investment under state laws as aforesaid,
including the legal fees (not to exceed $3,000) and all filing fees and
disbursements of counsel for the Underwriters and all other filing fees,
and the printing and furnishing of copies of the "Blue Sky Survey" and the
"Legal Investment Survey" to the Underwriters and to dealers, (v) the
rating of the Purchased Debt Securities by national rating agencies and
(vi) the performance of the Company's other obligations hereunder;
(k) To cause the Indenture to be duly authorized by the Company and to
be registered under the Trust Indenture Act of 1939, as amended;
(l) To furnish to the Underwriters, at or before the time of filing
with the Commission subsequent to the effective date of the Registration
Statement and prior to the termination of the distribution of the Purchased
Debt Securities, a copy of any document proposed to be filed by the Company
pursuant to Section 13(a), 13(d), 14 or 15(d) of the Exchange Act; and
(m) During the period beginning from the date of this Agreement and
continuing to and including the later of (i) the termination of trading
restrictions on the Purchased Debt Securities, as notified to the Company
by the Underwriters, and (ii) the time of purchase, the Company will not
offer, sell, contract to sell or otherwise dispose of any debt securities
of the Company which mature
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more than one year after the time of purchase and which are substantially
similar to the Purchased Debt Securities, without the Underwriters' prior
written consent; provided, however, that in no event shall the foregoing
period extend more than fifteen calendar days from the date of this
Agreement.
4. Conditions of Underwriters' Obligations. The several obligations of the
Underwriters hereunder are subject to the following conditions:
(a) That, at the time of purchase, you shall receive the signed
opinions of Richard D. Ternill, Esq., Vice President, Law and Corporate
Secretary of the Company; Cahill Gordon & Reindel, counsel for the Company;
and Sidley & Austin, counsel for the Underwriters, in each case
substantially in the forms heretofore furnished to you and in substance
satisfactory to you, addressed to the Underwriters (with reproduced or
conformed copies thereof for each of the other Underwriters); and that, at
the time of purchase, you shall receive the signed letter of Arthur
Andersen & Co., independent public accountants of the Company, and the
signed letter of Coopers & Lybrand L.L.P., independent public accountants
of Kansas City Power & Light Company ("KCPL"), each substantially in the
form heretofore furnished to you and in substance satisfactory to you
addressed to the Underwriters (with reproduced or conformed copies thereof
for each of the other Underwriters);
(b) That all orders, approvals or consents of state or federal
regulatory commissions necessary to permit the issue, sale and delivery of
the Purchased Debt Securities shall have been issued; at the time of
purchase such orders shall be in full force and effect; and prior to such
time of purchase no stop order with respect to the effectiveness of the
Registration Statement shall have been issued under the Act by the
Commission and at such time of purchase no proceedings therefor shall be
pending or threatened;
(c) That, at the time the Registration Statement became effective, the
Registration Statement did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and that the
Prospectus at its issue date and at the time of purchase shall not contain
an untrue statement of a material
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fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, other than any statement
contained in, or any matter omitted from, the Registration Statement or the
Prospectus in reliance upon, and in conformity with, information furnished
in writing by or on behalf of any Underwriter through you to the Company
expressly for use with reference to such Underwriter in the Registration
Statement or Prospectus and other than information with respect to KCPL
contained or incorporated by reference in the Registration Statement and
Prospectus and filings made by KCPL and incorporated by reference in the
Registration Statement and Prospectus;
(d) That, subsequent to the respective dates as of which information
is given in the Registration Statement and in the Prospectus, at the time
the Prospectus is first filed pursuant to Rule 424 under the Act, and prior
to the time of purchase, in your opinion no material adverse change in the
condition of the Company, financial or otherwise, shall have taken place
(other than as referred to in or contemplated by the Registration Statement
and Prospectus as of such time) which, in the reasonable judgment of the
Underwriters, is sufficiently material and adverse so as to render it
impractical or inadvisable to offer or deliver the Purchased Debt
Securities on the terms and in the manner contemplated in the Prospectus;
(e) That the Company shall have performed all of its obligations under
this Agreement which are to be performed by the terms hereof at or before
the time of purchase;
(f) That the Company shall, at the time of purchase, deliver to you
(with reproduced or conformed copies thereof for each of the other
Underwriters) a signed certificate of two of its executive officers stating
that, subsequent to the respective dates as of which information is given
in the Registration Statement and in the Prospectus, at the time the
Prospectus is first filed pursuant to Rule 424 under the Act, and prior to
the time of purchase, no material adverse change in the condition of the
Company, financial or otherwise, shall have taken place (other than as
referred to in or contemplated by the Registration Statement and Prospectus
as of such time) and also covering the matters set forth in (c) and (e) of
this Section 4;
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(g) That the Company shall have accepted Delayed Delivery Contracts in
any case in which sales of Contract Debt Securities arranged by the
Underwriters have been approved by the Company; and
(h) That subsequent to the date of this Agreement: (i) no downgrading
shall have occurred in the rating accorded the Company's Debt Securities by
a "nationally recognized securities rating organization," as that term is
defined by the Commission for purposes of its Rule 436(g)(2); and (ii) no
such rating organization shall have announced publicly subsequent to the
date of this Agreement that it has placed, or informed the Company or the
Underwriters that it intends to place, any of the Debt Securities on what
is commonly referred to as a "watchlist" for possible downgrading, in a
manner or to an extent indicating a materially greater likelihood of a
downgrading as described in clause (i) above occurring than was the case as
of the date hereof.
5. Termination of Agreement. The obligations of the several Underwriters
hereunder shall be subject to termination in your absolute discretion, if, at
any time prior to the time of purchase, trading in securities on the New York
Stock Exchange shall have been suspended (other than a temporary suspension to
provide for an orderly market) or minimum prices shall have been established on
the New York Stock Exchange, or if a banking moratorium shall have been declared
either by the United States or New York State authorities, or if the United
States shall have declared war in accordance with its constitutional processes
or there shall have occurred any outbreak or material escalation of hostilities
or other national or international calamity or crisis of such magnitude in its
effect on the financial markets of the United States as, in your reasonable
judgment, to make it impracticable to market the Purchased Debt Securities.
If you elect to terminate this Agreement as provided in this Section 5, the
Company and each other Underwriter shall be notified promptly in writing or by
telephone, confirmed in writing.
If the sale to the Underwriters of the Underwriters' Debt Securities, as
herein contemplated, is not carried out by the Underwriters for any reason
permitted hereunder or if such sale is not carried out because the Company shall
be unable to comply with any of the terms thereof, the Company shall not be
under any obligation or liability under this Agreement (except
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to the extent provided in Sections 3(i), 3(j), 7(b) and 9 hereof), and the
Underwriters shall be under no obligation or liability to the Company (except to
the extent provided in Sections 8(b) and 9 hereof) or to one another under this
Agreement.
6. Increase in Underwriters' Commitments. If any Underwriter shall default
in its obligation to take up and pay for the Purchased Debt Securities to be
purchased by it hereunder and if the principal amount of the Purchased Debt
Securities which all Underwriters so defaulting shall have so failed to take up
and pay for does not exceed 10% of the total principal amount of the Purchased
Debt Securities, the non-defaulting Underwriters shall take up and pay for (in
addition to the principal amount of the Purchased Debt Securities they are
obligated to purchase pursuant to this Agreement) the principal amount of the
Purchased Debt Securities agreed to be purchased by all such defaulting
Underwriters, as herein provided. Such Purchased Debt Securities shall be taken
up and paid for by such non-defaulting Underwriter or Underwriters in such
amount or amounts as you may designate with the consent of each Underwriter so
designated or, in the event no such designation is made, such Purchased Debt
Securities shall be taken up and paid for by all non-defaulting Underwriters pro
rata in proportion to the principal amount of the Purchased Debt Securities set
opposite the names of all such non-defaulting Underwriters in Schedule A to the
Purchase Agreement.
Without relieving any defaulting Underwriter of its obligations hereunder,
the Company agrees with the non-defaulting Underwriters that it will not sell
any Purchased Debt Securities hereunder unless all of the Underwriters' Debt
Securities are purchased by the Underwriters (or by substituted Underwriters
selected by you with the approval of the Company or selected by the Company with
your approval).
If a new underwriter or underwriters are substituted by the Underwriters or
by the Company for a defaulting Underwriter or Underwriters in accordance with
the foregoing provision, the Company or you will have the right to postpone the
time of purchase for a period of not exceeding five business days in order that
necessary changes in the Registration Statement and Prospectus and other
documents may be effected.
The term "Underwriter" as used in this Agreement will refer to and include
any underwriter substituted under this Section 6 with like effect as if such
substituted underwriter
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had originally been named in Schedule A to the Purchase Agreement.
7. Warranties and Representations of and Indemnity by the Company. (a) The
Company warrants and represents that, when the Registration Statement became
effective, the Registration Statement complied in all material respects, and,
when the Prospectus is first filed pursuant to Rule 424 under the Act, and at
the time of purchase the Prospectus will comply in all material respects, with
the provisions of the Act, and that neither contained nor will contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, however, that the Company makes no warranty or representation with
respect to any statement contained in, or any matter omitted from, the
Registration Statement or the Prospectus in reliance upon and in conformity with
information furnished in writing by or on behalf of any Underwriter through you
to the Company expressly for use with reference to the Underwriter in the
Registration Statement or Prospectus or information with respect to KCPL
contained or incorporated by reference in the Registration Statement and
Prospectus or filings made by KCPL incorporated by reference in the Registration
Statement and Prospectus. The Company also warrants and represents that the
documents incorporated by reference in the Prospectus (other than information
with respect to KCPL incorporated by reference therein and filings made by KCPL)
complied at the time they were filed in all material respects with the
requirements of the Exchange Act and any additional documents deemed to be
incorporated by reference in the Prospectus (other than information with respect
to KCPL incorporated by reference therein and filings made by KCPL) will, when
they are filed with the Commission, comply in all material respects with the
requirements of the Exchange Act, and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein, or
necessary to make the statements therein, in the light of the circumstances
under which they are made, not misleading.
(b) The Company agrees to indemnify and hold harmless each Underwriter, and
any person who controls any Underwriter within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, from and against any loss, expense,
liability or claim which arises out of or is based
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upon any alleged untrue statement of a material fact in the Registration
Statement, any prospectus contained in the Registration Statement at the time it
became effective or the Prospectus, or any related preliminary prospectus, or
arises out of or is based upon any alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements made
therein not misleading. The foregoing shall not cover any such loss, expense,
liability or claim, however, which arises out of or is based upon any alleged
untrue statement of a material fact contained in, and in conformity with
information furnished in writing by or on behalf of any Underwriter through you
to the Company expressly for use with reference to the Underwriter in, any such
documents or arises out of or is based upon any alleged omission to state a
material fact in connection with such information required to be stated in any
such documents or necessary to make such information not misleading.
If any action is brought against an Underwriter or controlling person in
respect of which indemnity may be sought against the Company pursuant to the
foregoing paragraph, such Underwriter shall promptly notify the Company in
writing or by telephone, confirmed in writing, of the institution of such
action, and the Company shall assume the defense of such action, including the
employment of counsel and payment of expenses; provided, however, that the
failure so to notify the Company will not relieve it from any liability that it
may have to such Underwriter under this Section 7(b) unless, and only to the
extent that, such failure results in the forfeiture of substantive rights or
defenses by the Company. Such Underwriter or controlling person shall have the
right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such Underwriter or such
controlling person unless the employment of such counsel shall have been
authorized in writing by the Company in connection with the defense of such
action or the Company shall not have employed counsel to have charge of the
defense of such action or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to those available to the Company (in which
case the Company shall not have the right to direct the defense of such action
on behalf of the indemnified party or parties), in any of which events such fees
and expenses of one counsel for all indemnified parties selected by such
Underwriter shall be borne by the Company. Anything in this paragraph to the
contrary notwithstanding, the Company shall not be liable for any settlement of
any such claim or action effected without its written consent. The Company's
indemnity agreement contained in this Section 7(b) and its warranties and
representations contained in this Agreement shall remain in full force and
effect regardless of any investigation made by or on behalf of any Underwriter
or controlling person,
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and shall survive any termination of this Agreement and the issuance and
delivery of the Purchased Debt Securities.
The Company agrees promptly to notify the Underwriters of the commencement
of any litigation or proceedings against the Company or any of its officers,
directors or controlling persons in connection with the issue and sale of the
Purchased Debt Securities or with the Registration Statement or Prospectus.
8. Warranties and Representations of and Indemnity by Underwriters. (a)
Each Underwriter warrants and represents that the information furnished in
writing by or on behalf of such Underwriter through you to the Company expressly
for use with reference to such Underwriter in the Registration Statement at the
time it became effective or the Prospectus when the Prospectus is first filed
pursuant to Rule 424 under the Act, will not contain an untrue statement of a
material fact and will not omit to state a material fact in connection with such
information required to be stated in the Registration Statement or the
Prospectus or necessary to make such information not misleading. Each
Underwriter, in addition to other information furnished by such Underwriter or
on its behalf through you to the Company in writing expressly for use with
reference to such Underwriter in the Registration Statement and Prospectus,
hereby furnishes to the Company in writing expressly for use with reference to
such Underwriter the statements with respect to the terms of offering of the
Purchased Debt Securities by the Underwriters set forth on the cover page of the
Prospectus and under "Underwriting" therein.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company and its directors, officers and controlling persons from and against any
loss, expense, liability or claim which arises out of or is based upon any
alleged untrue statement of a material fact contained in, and in conformity with
information furnished in writing by or on behalf of such Underwriter through you
to the Company expressly for use with reference to such Underwriter in, the
Registration Statement, any prospectus contained in the Registration Statement
at the time it became effective or the Prospectus, or any related preliminary
prospectus, or arises out of or is based upon any alleged omission to state a
material fact in connection with such information required to be stated in such
documents or necessary to make such information not misleading.
If any action is brought against the Company or any such person in respect
of which indemnity may be sought against
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any Underwriter pursuant to the foregoing paragraph, the Company or such person
shall promptly notify such Underwriter in writing or by telephone, confirmed in
writing, of the institution of such action, and such Underwriter shall assume
the defense of such action, including the employment of counsel and payment of
expenses; provided, however, that the failure so to notify such Underwriter will
not relieve it from any liability that it may have to the Company under this
Section 8(b) unless, and only to the extent that, such failure results in the
forfeiture of substantive rights or defenses by such Underwriter. The Company or
such person shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense of the
Company or such person unless the employment of such counsel shall have been
authorized in writing by such Underwriter in connection with the defense of such
action or such Underwriter shall not have employed counsel to have charge of the
defense of such action or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to those available to such Underwriter (in
which case such Underwriter shall not have the right to direct the defense of
such action on behalf of the indemnified party or parties), in any of which
events such fees and expenses of one counsel for all indemnified parties
selected by the Company shall be borne by such Underwriter. Anything in this
paragraph to the contrary notwithstanding, no Underwriter shall be liable for
any settlement of any such claim or action effected without the written consent
of such Underwriter. The indemnity agreement on the part of each Underwriter
contained in this Section 8(b) shall remain in full force and effect regardless
of any investigation made by or on behalf of the Company or such person, and
shall survive any termination of this Agreement and the issuance and delivery of
the Purchased Debt Securities.
Each Underwriter agrees promptly to notify the Company of the commencement
of any litigation or proceedings against the Underwriter in connection with the
issue and sale of the Purchased Debt Securities or with the Registration
Statement or Prospectus.
9. Contribution. If the indemnification provided for in Sections 7(b) or
8(b) above is unavailable in respect of any losses, expenses, liabilities or
claims referred to therein, then the parties entitled to indemnification by the
terms thereof shall be entitled to contribution to liabilities and expenses
except to the extent that contribution is not permitted under Section 11(f) of
the Act. In determining the
-15-
amount of contribution to which the respective parties are entitled, there shall
be considered the relative benefits received by each party from the offering of
the Purchased Debt Securities (taking into account the portion of the proceeds
of the offering received by each), the parties' relative knowledge and access to
information concerning the matter with respect to which the claim was asserted,
the opportunity to correct and prevent any misstatement or omission, and any
other equitable considerations appropriate under the circumstances. The parties
entitled to indemnification agree that it would not be equitable if the amount
of such contribution were determined by pro rata or per capita allocation (even
if the Underwriters and their directors, officers and controlling persons were
treated as one entity for such purpose). The contribution agreement contained in
this Section 9 shall remain in full force and effect regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
their respective directors, officers or controlling persons and shall survive
any termination of this Agreement and the issuance and delivery of the Purchased
Debt Securities.
10. Notices. All statements, requests, notices and agreements shall be in
writing or by telegram or facsimile and, if to the Underwriters, shall be
sufficient in all respects if delivered or sent by registered mail to the
address furnished in writing for the purpose of such statements, requests,
notices and agreements hereunder, and, if to the Company shall be sufficient in
all respects if delivered or sent by registered mail to the Company at 818
Kansas Avenue, Topeka, Kansas 66612, Attention: Steven L. Kitchen, Executive
Vice President and Chief Financial Officer.
11. Construction. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
The section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
12. Parties in Interest. The Agreement herein set forth has been and is
made solely for the benefit of the Underwriters and the Company, and the
controlling persons, directors and officers referred to in Sections 7, 8 and 9
hereof, and their respective successors, assigns, executors and administrators,
and no other person shall acquire or have any right under or by virtue of this
Agreement. Nothing in this Agreement is intended or shall be construed to give
to any other person,
-16-
firm or corporation (including, without limitation, any purchaser of the
Purchased Debt Securities from an Underwriter or any subsequent holder thereof
or any purchaser of any Contract Debt Securities or any subsequent holder
thereof) any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained.
The term "successor" as used in this Agreement shall not include any
purchaser, as such purchaser, of any Purchased Debt Securities from any
Underwriter or any subsequent holder thereof or any purchaser, as such
purchaser, of any Contract Debt Securities or any subsequent holder thereof.
13. Counterparts. This Agreement may be executed in any number of
counterparts which, taken together, shall constitute one and the same
instrument.
Schedule I
DELAYED DELIVERY CONTRACT
Dated: ______________, 199_
Western Resources, Inc.
818 Kansas Avenue
Topeka, Kansas 66612
Attention: Chief Financial Officer
Dear Sirs:
The undersigned hereby agrees to purchase from Western Resources, Inc. (the
"Company"), and the Company agrees to sell to the undersigned,
$___________________
principal amount of the Company's (state title of issue] (the Debt Securities)
offered by the Company's Prospectus dated ____________, 199_ and a Prospectus
Supplement dated ________________, 199 _, receipt of copies of which is hereby
acknowledged, at a purchase price of _____% of the principal amount thereof plus
accrued interest and on the further terms and conditions set forth in this
contract.
The undersigned agrees to purchase such Debt Securities in the principal
amounts and on the delivery dates (the Delivery Dates) set forth below:
Principal Plus Accrued
Delivery Date Amount Interest From:
$
- ---------------------- ----------------------- --------------------------
$
- ---------------------- ----------------------- --------------------------
$
- ---------------------- ----------------------- --------------------------
-2-
Payment for the Debt Securities which the undersigned has agreed to
purchase on each Delivery Date shall be made to the Company or its order by
certified or bank cashier's check in same day or New York Clearing House funds
(as agreed to by the Company and the undersigned) at the ___________ (or at such
other place as the undersigned and the Company shall agree) at 11:00 A.M., New
York City Time, on such Delivery Date upon issuance and delivery to the
undersigned of the Debt Securities to be purchased by the undersigned on such
Delivery Date in such authorized denominations and, unless otherwise provided
herein, registered in such names as the undersigned may designate by written or
telegraphic communications addressed to the Company not less than five full
business days prior to such Delivery Date.
The obligation of the Company to sell and deliver, and of the undersigned
to take delivery of and make payment for, Debt Securities on each Delivery Date
shall be subject to the conditions that (1) the purchase of Debt Securities to
be made by the undersigned shall not at the time of delivery be prohibited under
the laws of the jurisdiction to which the undersigned is subject, (2) the sale
of the Debt Securities by the Company pursuant to this contract shall not at the
time of delivery be prohibited under the laws of any jurisdiction to which the
Company is subject and (3) the Company shall have sold, and delivery shall have
taken place, to the Underwriters such principal amount of the Debt Securities as
is to be sold and delivered to them. In the event that Debt Securities are not
sold to the undersigned because one of the foregoing conditions is not met, the
Company shall not be liable to the undersigned for damages arising out of the
transactions covered by this contract.
Promptly after completion of the sale and delivery to the Underwriters, the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by copies of the opinions of counsel for the
Company delivered to the Underwriters.
Failure to take delivery of and make payment for Debt Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this contract.
The undersigned represents and warrants that (a) as of the date of this
contract, the undersigned is not prohibited under the laws of the jurisdictions
to which the undersigned is subject from purchasing the Debt Securities hereby
agreed to be
-3-
purchased and (b) the undersigned does not contemplate selling the Debt
Securities which it has agreed to purchase hereunder prior to the Delivery Date
therefore.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other. This contract shall be
governed by and construed in accordance with the laws of the State of New York.
This contract may be executed in one or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
It is understood that the acceptance of any Delayed Delivery Contract is in
the Company's sole discretion and, without limiting the foregoing, need not be
on a first-come, first-served basis. If the contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so signed.
Yours very truly,
______________________________
By____________________________
______________________________
______________________________
Address
Accepted, as of the date first above written
WESTERN RESOURCES, INC.
By____________________________
Title_________________________
-4-
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed
are as follows:
(Please print.)
Telephone No.
Name (Including Area Code) Department
---- --------------------- ----------
WESTERN RESOURCES, INC.
PURCHASE AGREEMENT
DEBT SECURITIES
--------------------
Date)
Western Resources, Inc.
818 Kansas Avenue
Topeka, Kansas 66612
Dear Sirs:
Referring to the Debt Securities of Western Resources, Inc. (the "Company")
("Debt Securities") covered by registration statement on Form S-3 (No. 333- ),
such registration statement including (i) the prospectus included therein, dated
________________, as supplemented by a prospectus supplement dated
________________, in the form filed under Rule 424(b) and any additional
prospectus supplements relating to the Debt Securities filed under Rule 424
(such prospectus as so supplemented, including each document incorporated by
reference therein is hereinafter called the "Prospectus") and (ii) all documents
filed as part thereof or incorporated by reference therein, is hereinafter
called the "Registration Statement," on the basis of the representations,
warranties and agreements contained in this Agreement, but subject to the terms
and conditions herein set forth, the purchaser or purchasers named in Schedule A
hereto (the "Underwriters") agree to purchase, severally, and the Company agrees
to sell to the Underwriters, severally, the respective principal amounts of the
Debt Securities having the terms described below (the "Purchased Debt
Securities") set forth opposite the name of each Underwriter on Schedule A
hereto.
The price at which the Purchased Debt Securities shall be purchased from
the Company by the Underwriters shall be ___% plus accrued interest from
_________________. The initial public offering price shall be ___% plus accrued
interest from ___________. The Purchased Debt Securities will be offered by the
Underwriters as set forth in the Prospectus relating to such Purchased Debt
Securities.
-2-
The Purchased Debt Securities will have the following terms:
Title of Debt Securities: __________________________________
Interest Rate: _____% per annum
Interest Payment Dates: __________________________________
Maturity: __________________________________
Redemption Provisions: __________________________________
__________________________________
Company Conversion Option: __________________________________
__________________________________
__________________________________
Other: __________________________________
__________________________________
__________________________________
__________________________________
Payment for the Purchased
Debt Securities shall be
made in the following funds: __________________________________
The time of purchase shall
be: __________________________________
The place at which the
Purchased Debt Securities
may be checked and packaged
shall be: __________________________________
The place(s) at which the
Purchased Debt Securities
shall be delivered and sold
shall be: __________________________________
-3-
Delayed Delivery
Contracts: [authorized] [not authorized]
[Delivery Date __________________________________
Minimum principal amount of
Purchased Debt Securities to
be sold pursuant to any De-
layed Delivery Contract: __________________________________
Maximum aggregate principal
amount of Purchased Debt Se-
curities to be sold pursuant
to all Delayed Delivery Con-
tracts: __________________________________
Compensation to
Underwriters: ________________________________]*
Notices to the Underwriters shall be sent to the following address(es) or
telecopier number(s):
If we are acting as Representative(s) for the several Underwriters named in
Schedule A hereto, we represent that we are authorized to act for such several
Underwriters in connection with the transactions contemplated in this Agreement,
and that, if there are more than one of us, any action under this Agreement
taken by any of us will be binding upon all the Underwriters.
All of the provisions contained in the document entitled "Western
Resources, Inc., Debt Securities, Standard Purchase Provisions," a copy of which
has been previously furnished to us, are hereby incorporated by reference in
their entirety and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein.
-4-
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed duplicate hereof, whereupon it will
become a binding agreement between the Company and the several Underwriters in
accordance with its terms.
Very truly yours,
[Firm Name]
By _____________________________
Title: _____________________
[Firm Name]
By _____________________________
Title:______________________
Acting on behalf of and as
Representative(s) of the sev-
eral Underwriters named in
Schedule A hereto.*
- ----------
* To be deleted if the Purchase Agreement is not executed by one or more
Underwriters acting as Representative(s) of the Underwriters for purposes
of this Agreement.
-5-
The foregoing Purchase Agreement
is hereby confirmed as of the
date first above written.
WESTERN RESOURCES, INC.
By_____________________________
Title__________________________
SCHEDULE A
Name of Underwriter Amount
- ------------------- ------
------------------------------
Total $
------------------------------
Exhibit 4(a)
================================================================================
WESTERN RESOURCES, INC.
DEBT SECURITIES
INDENTURE
Dated as of ,
BANKERS TRUST COMPANY, Trustee
================================================================================
PARTIAL CROSS-REFERENCE TABLE
Indenture Section TIA Section
2.05........................................ 317(b)
2.06........................................ 312(a)
2.11........................................ 316(a) (last sentence)
4.05........................................ 314(a)(4)
6.03........................................ 317(a)(1)
6.04........................................ 316(a)(1)(B)
6.06........................................ 316(a)(1)(A)
6.07........................................ 317(a)(1)
7.01........................................ 315(a), 315(d)
7.04........................................ 315(b)
7.05........................................ 313(a)
7.07........................................ 310(a), 310(b)
7.09........................................ 310(a)(2)
8.02........................................ 310(a), 310(b)
10.04....................................... 316(c)
11.01....................................... 318(a)
11.02....................................... 313(c)
11.03....................................... 314(c)(1), 314(c)(2)
11.04....................................... 314(e)
TABLE OF CONTENTS
Page
ARTICLE 1 -- DEFINITIONS......................................................1
SECTION 1.01. Definitions. ...............................................1
SECTION 1.02. Other Definitions...........................................4
SECTION 1.03. Rules of Construction.......................................4
ARTICLE 2 -- THE SECURITIES...................................................5
SECTION 2.01. Issuable in Series..........................................5
SECTION 2.02. Execution and Authentication................................7
SECTION 2.03. Agents. ....................................................8
SECTION 2.04. Bearer Securities...........................................8
SECTION 2.05. Paying Agent to Hold Money in Trust.........................9
SECTION 2.06. Securityholder Lists.......................................10
SECTION 2.07. Transfer and Exchange......................................10
SECTION 2.08. Replacement Securities.....................................11
SECTION 2.09. Outstanding Securities.....................................11
SECTION 2.10. Discounted Debt Securities.................................12
SECTION 2.11. Treasury Securities........................................12
SECTION 2.12. Global Securities..........................................12
SECTION 2.13. Temporary Securities.......................................13
SECTION 2.14. Cancellation. .............................................13
SECTION 2.15. Defaulted Interest.........................................13
ARTICLE 3 -- REDEMPTION......................................................14
SECTION 3.01. Notices to Trustee.........................................14
SECTION 3.02. Selection of Securities to Be Redeemed.....................14
SECTION 3.03. Notice of Redemption.......................................14
SECTION 3.04. Effect of Notice of Redemption.............................15
SECTION 3.05. Payment of Redemption Price................................16
SECTION 3.06. Securities Redeemed in Part................................16
SECTION 3.07. Limited Right of Redemption at Option of Beneficial Owner..17
-i-
Page
ARTICLE 4 -- COVENANTS.......................................................19
SECTION 4.01. Payment of Securities......................................19
SECTION 4.02. Overdue Interest...........................................19
SECTION 4.03. No Lien Created, etc.......................................20
SECTION 4.04. Compliance Certificate.....................................20
SECTION 4.05. SEC Reports. ..............................................20
ARTICLE 5 -- SUCCESSORS......................................................21
SECTION 5.01. When Company May Merge, etc...................................21
ARTICLE 6 -- DEFAULTS AND REMEDIES...........................................21
SECTION 6.01. Events of Default..........................................21
SECTION 6.02. Acceleration. .............................................23
SECTION 6.03. Other Remedies.............................................23
SECTION 6.04. Waiver of Past Defaults....................................24
SECTION 6.05. Control by Majority........................................24
SECTION 6.06. Limitation on Suits........................................24
SECTION 6.07. Collection Suit by Trustee.................................25
SECTION 6.08. Priorities. ...............................................25
ARTICLE 7 -- TRUSTEE.........................................................26
SECTION 7.01. Rights of Trustee..........................................26
SECTION 7.02. Individual Rights of Trustee...............................27
SECTION 7.03. Trustee's Disclaimer.......................................27
SECTION 7.04. Notice of Defaults.........................................27
SECTION 7.05. Reports by Trustee to Holders..............................28
SECTION 7.06. Compensation and Indemnity.................................28
SECTION 7.07. Replacement of Trustee.....................................29
SECTION 7.08. Successor Trustee by Merger, etc...........................30
SECTION 7.09. Trustee's Capital and Surplus..............................30
ARTICLE 8 -- DISCHARGE OF INDENTURE..........................................30
SECTION 8.01. Defeasance. ...............................................30
SECTION 8.02. Conditions to Defeasance...................................31
SECTION 8.03. Application of Trust Money.................................32
SECTION 8.04. Repayment to Company.......................................32
-ii-
Page
ARTICLE 9 -- CONVERSION.....................................................33
SECTION 9.01. Conversion Privilege.......................................33
SECTION 9.02. Conversion Procedure.......................................33
SECTION 9.03. Taxes on Conversion........................................34
SECTION 9.04. Company Determination Final................................35
SECTION 9.05. Trustee's and Conversion Agent's Disclaimer................35
SECTION 9.06. Company to Provide Conversion Securities...................35
SECTION 9.07. Cash Settlement Option.....................................35
SECTION 9.08. Adjustment in Conversion Rate for Change in Capital
Stock ...................................................37
SECTION 9.09. Adjustment in Conversion Rate for Common Stock Issued
Below Market Price ......................................38
SECTION 9.10. Adjustment for Other Distributions.........................40
SECTION 9.11. Voluntary Adjustment.......................................41
SECTION 9.12. When Adjustment May Be Deferred............................41
SECTION 9.13. When No Adjustment Required................................42
SECTION 9.14. Notice of Adjustment.......................................42
SECTION 9.15. Notice of Certain Transactions.............................42
SECTION 9.16. Reorganization of the Company..............................43
ARTICLE 10 -- AMENDMENTS.....................................................43
SECTION 10.01. Without Consent of Holders................................43
SECTION 10.02. With Consent of Holders...................................44
SECTION 10.03. Compliance with Trust Indenture Act.......................45
SECTION 10.04. Effect of Consents........................................45
SECTION 10.05. Notation on or Exchange of Securities.....................46
SECTION 10.06. Trustee Protected.........................................46
ARTICLE 11 -- MISCELLANEOUS..................................................46
SECTION 11.01. Trust Indenture Act.......................................46
SECTION 11.02. Notices ..................................................46
SECTION 11.03. Certificate and Opinion as to Conditions Precedent........48
SECTION 11.04. Statements Required in Certificate or Opinion.............48
SECTION 11.05. Rules by Company and Agents...............................48
SECTION 11.06. Legal Holidays............................................49
SECTION 11.07. No Recourse Against Others................................49
-iii-
Page
SECTION 11.08. Duplicate Originals.......................................49
SECTION 11.09. Governing Law.............................................49
-iv-
INDENTURE dated as of __________, ____ between WESTERN RESOURCES, INC., a
corporation organized and existing under the laws of the State of Kansas
(hereinafter called the "Company"), and BANKERS TRUST COMPANY, ("Trustee").
Each party agrees as follows for the benefit of the Holders of the
Company's debt securities issued under this Indenture:
ARTICLE 1 -- DEFINITIONS
SECTION 1.01. Definitions.
"Affiliate" means any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company.
"Agent" means any Registrar, Transfer Agent or Paying Agent.
"Authorized Newspaper" means a newspaper that is:
(1) printed in the English language or in an official language of the
country of publication;
(2) customarily published on each business day in the place of
publication; and
(3) of general circulation in the relevant place or in the financial
community of such place.
Whenever successive publications in an Authorized Newspaper are required,
they may be made on the same or different business days and in the same or
different Authorized Newspapers.
"Bearer Security" means a Security payable to bearer.
"Board" means the Board of Directors of the Company or any authorized
committee of the Board.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of any person and all
warrants or options to acquire such capital stock.
-2-
"Common Stock" means the common stock, par value $5.00 per share, of the
Company.
"Company" means the party named as such above until a successor replaces it
and thereafter means the successor.
"Conversion Rate" means such number or amount of shares of Common Stock or
other equity or debt securities for which $1,000 aggregate principal amount of
Securities of any series is convertible, initially as stated in the Securities
Resolution authorizing the series and as adjusted pursuant to the terms of this
Indenture and the Securities Resolution.
"coupon" means an interest coupon for a Bearer Security.
"Default" means any event which is, or after notice or passage of time
would be, an Event of Default (as defined below).
"Discounted Debt Security" means a Security where the amount of principal
due upon acceleration is less than the stated principal amount.
"Holder" or "Securityholder" means the person in whose name a Registered
Security is registered and the bearer of a Bearer Security or coupon.
"Indenture" means this Indenture and any Securities Resolution as amended
from time to time.
"Lien" means mortgage, pledge, security interest or other lien.
"Officer" means the Chairman, any Vice-Chairman, the President, any
Executive or Senior Vice President, any Vice-President, the Treasurer or any
Assistant Treasurer, the Secretary or any Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers of the
Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee, and delivered to the Trustee. The counsel may be an
employee of or counsel to the Company or the Trustee.
-3-
"person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"principal" of a debt security means the principal of the security plus the
premium, if and when applicable, on the security.
"Registered Security" means a Security registered as to principal and
interest by the Registrar.
"SEC" means the Securities and Exchange Commission.
"Securities" means the debt securities issued under this Indenture.
"Securities Resolution" means a resolution adopted by the Board or by a
committee of Officers or an Officer pursuant to Board delegation authorizing a
series.
"series" means a series of Securities or the Securities of the series.
"Subsidiary" of any person means (i) a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly, by such
person or by one or more other Subsidiaries of such person or by such person and
one or more Subsidiaries thereof or (ii) any other person (other than a
corporation) in which such person, or one or more Subsidiaries of such person or
such person and one or more Subsidiaries thereof, directly or indirectly, has at
least a majority ownership and power to direct the policy, management and
affairs thereof.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code ss.
77aaa-77bbbb), as amended.
"Trading Day" means each day on which the securities exchange or quotation
system which is used to determine the Market Price is open for trading or
quotation.
"Trustee" means the party named as such above until a successor replaces it
and thereafter means the successor.
"Trust Officer" means the Chairman of the Board, the President or any other
officer or assistant officer of the
-4-
Trustee assigned by the Trustee to administer its corporate trust matters.
"United States" means the United States of America, its territories and
possessions and other areas subject to its jurisdiction.
SECTION 1.02. Other Definitions.
Term Defined in Section
"actual knowledge" 7.01
"Bankruptcy Law" 6.01
"Beneficial Owner" 3.07
"Conditional Redemption" 3.04
"Conversion Agent" 2.03
"Conversion Date" 9.02
"Conversion Notice" 9.02
"Conversion Right" 9.01
"Custodian" 6.01
"Depositary" 3.07
"Event of Default" 6.01
"Legal Holiday" 11.06
"Market Price" 9.07
"Participant" 3.07
"Paying Agent" 2.03
"Price Per Share" 9.09
"Registrar" 2.03
"Section 3.07 Aggregate Limit" 3.07
"Section 3.07 Commencement Date" 3.07
"Section 3.07 Individual Limit" 3.07
"Section 3.07 Redemption Period" 3.07
"Transfer Agent" 2.03
"Treasury Regulations" 2.04
"U.S. Government Obligations" 8.02
SECTION 1.03. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to
it in accordance with generally accepted accounting principles in the
United States;
-5-
(3) generally accepted accounting principles are those applicable from
time to time;
(4) all terms used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by SEC rule under the
TIA have the meanings assigned to them by such definitions;
(5) "or" is not exclusive; and
(6) words in the singular include the plural, and in the plural include
the singular.
ARTICLE 2 -- THE SECURITIES
SECTION 2.01. Issuable in Series.
The aggregate principal amount of Securities that may be issued under this
Indenture is unlimited. The Securities may be issued from time to time in one or
more series. Each series shall be created by a Securities Resolution that
establishes the terms of the series, which may include the following:
(1) the title of the series;
(2) the aggregate principal amount of the series;
(3) the interest rate, if any, or method of calculating the interest rate;
(4) the date from which interest will accrue;
(5) the record dates for interest payable on Registered Securities;
(6) the dates when principal and interest are payable;
(7) the manner of paying principal and interest;
(8) the places where principal and interest are payable;
(9) the Registrar, Transfer Agent and Paying Agent;
-6-
(10) the terms of any mandatory or optional redemption by the Company or
any third party including any sinking fund;
(11) the terms of any redemption at the option of Holders or put by the
Holders;
(12) the denominations in which Securities are issuable;
(13) whether Securities will be issuable as Registered Securities, Bearer
Securities or uncertificated Securities;
(14) whether and upon what terms Registered Securities, Bearer Securities
and uncertificated Securities may be exchanged;
(15) whether any Securities will be represented by a Security in global
form;
(16) the terms of any global Security;
(17) the terms of any tax indemnity;
(18) the currencies (including any composite currency) in which principal
or interest may be paid;
(19) if payments of principal or interest may be made in a currency other
than that in which Securities are denominated, the manner for
determining such payments;
(20) if amounts of principal or interest may be determined by reference to
an index, formula or other method, the manner for determining such
amounts;
(21) provisions for electronic issuance of Securities or for Securities in
uncertificated form;
(22) the portion of principal payable upon acceleration of a Discounted
Debt Security;
(23) whether any Events of Default or covenants in addition to or in lieu
of those set forth in this Indenture have been added;
-7-
(24) whether and upon what terms Securities may be defeased;
(25) the forms of the Securities or any coupon, which may be in the form of
Exhibit A or B;
(26) any terms that may be required by or advisable under U.S. laws;
(27) whether and upon what terms the Securities will be convertible into or
exchangeable for Common Stock of the Company or other equity or debt
securities, which may include the terms provided in Article 9; and
(28) any other terms not inconsistent with this Indenture.
All Securities of one series need not be issued at the same time and,
unless otherwise provided, a series may be reopened for issuances of additional
Securities of such series.
The creation and issuance of a series and the authentication and delivery
thereof are not subject to any conditions precedent.
SECTION 2.02. Execution and Authentication.
Two Officers shall sign the Securities by manual or facsimile signature.
The Company's seal shall be reproduced on the Securities. An Officer shall sign
any coupons by facsimile signature.
If an Officer whose signature is on a Security or its coupons no longer
holds that office at the time the Security is authenticated or delivered, the
Security and coupons shall nevertheless be valid.
A Security and its coupons shall not be valid until the Security is
authenticated by the manual or facsimile signature of the Registrar. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
Each Registered Security shall be dated the date of its authentication.
Each Bearer Security shall be dated the date of its original issuance or as
provided in the Securities Resolution.
-8-
Securities may have notations, legends or endorsements required by law,
stock exchange rule, agreement or usage.
In the event Securities are issued in electronic or other uncertificated
form, such Securities may be validly issued without the signatures or seal
contemplated by this Section 2.02.
SECTION 2.03. Agents.
The Company shall maintain an office or agency where Securities may be
authenticated ("Registrar"), where Securities may be presented for registration
of transfer or for exchange ("Transfer Agent"), where Securities may be
presented for payment ("Paying Agent") and where Securities may be presented for
conversion ("Conversion Agent"). Whenever the Company must issue or deliver
Securities pursuant to this Indenture, the Registrar shall authenticate the
Securities at the Company's request. The Transfer Agent shall keep a register of
the Securities and of their transfer and exchange.
The Company may appoint more than one Registrar, Transfer Agent, Paying
Agent or Conversion Agent for a series. The Company shall notify the Trustee of
the name and address of any Agent not a party to this Indenture. If the Company
does not appoint or maintain a Registrar, Transfer Agent, Paying Agent or
Conversion Agent for a series, the Trustee shall act as such.
SECTION 2.04. Bearer Securities.
U.S. laws and Treasury Regulations restrict sales or exchanges of and
payments on Bearer Securities. Therefore, except as provided below:
(1) Bearer Securities will be offered, sold or delivered only outside the
United States and will be delivered in connection with its original
issuance only upon presentation of a certificate in a form prescribed
by the Company to comply with U.S. laws and regulations.
(2) Bearer Securities will not be issued in exchange for Registered
Securities.
(3) All payments of principal and interest (including original issue
discount) on Bearer Securities will be made outside the United
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States by a Paying Agent located outside the United States unless the
Company determines that:
(A) such payments may not be made by such Paying Agent because the
payments are illegal or prevented by exchange controls as
described in Treasury Regulation ss. 1.163-5(c)(2)(v); and
(B) making the payments in the United States would not have an
adverse tax effect on the Company.
If there is a change in the relevant provisions of U.S. laws or Treasury
Regulations or the judicial or administrative interpretation thereof, a
restriction set forth in paragraph (1), (2) or (3) above will not apply to a
series if the Company determines that the relevant provisions no longer apply to
the series or that failure to comply with the relevant provisions would not have
an adverse tax effect on the Company or on Securityholders or cause the series
to be treated as "registration-required" obligations under U.S. law.
The Company shall notify the Trustee of any determinations by the Company
under this Section.
"Treasury Regulations" means regulations of the U.S. Treasury Department
under the Internal Revenue Code of 1986, as amended.
SECTION 2.05. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent for a series other than the
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of the persons entitled thereto all money held by the Paying Agent for
the payment of principal of or interest on the series, and will notify the
Trustee of any default by the Company in making any such payment.
While any such default continues, the Trustee may require a Paying Agent to
pay all money so held by it to the Trustee. The Company at any time may require
a Paying Agent to pay all money held by it to the Trustee. Upon payment over to
the Trustee, the Paying Agent shall have no further liability for the money.
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If the Company or an Affiliate acts as Paying Agent for a series, it shall
segregate and hold as a separate trust fund all money held by it as Paying Agent
for the series.
The Company may elect not to exchange or register the transfer of any
Security for a period of 15 days before a selection of Securities to be
redeemed.
SECTION 2.06. Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Transfer Agent, the Company shall
furnish to the Trustee semiannually and at such other times as the Trustee may
request a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Holders of Registered Securities and
Holders of Bearer Securities whose names are on the list referred to below.
The Transfer Agent shall keep a list of the names and addresses of Holders
of Bearer Securities who file a request to be included on such list. A request
will remain in effect for two years, and successive requests may be made.
Whenever the Company or the Trustee is required to mail a notice to all
Holders of Registered Securities of a series, it also shall mail the notice to
Holders of Bearer Securities of the series whose names are on the list.
Whenever the Company is required to publish a notice to all Holders of
Bearer Securities of a series, it also shall mail the notice to such of them
whose names are on the list.
SECTION 2.07. Transfer and Exchange.
Where Registered Securities of a series are presented to the Transfer Agent
with a request to register a transfer or to exchange them for an equal principal
amount of Registered Securities of other denominations of the same series, the
Transfer Agent shall register the transfer or make the exchange if its
requirements for such transactions are met.
The Transfer Agent may require a Holder to pay a sum sufficient to cover
any taxes imposed on a transfer or exchange.
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If a series provides for Registered and Bearer Securities and for their
exchange, Bearer Securities may be exchanged for Registered Securities and
Registered Securities may be exchanged for Bearer Securities as provided in the
Securities or the Securities Resolution if the requirements of the Transfer
Agent for such transactions are met and in the case of the exchange of
registered securities for bearer securities if Section 2.04 permits the
exchange.
SECTION 2.08. Replacement Securities.
If the Holder of a Security or coupon claims that it has been lost,
destroyed or wrongfully taken, then, in the absence of notice to the Company or
the Trustee that the Security or coupon has been acquired by a bona fide
purchaser, the Company shall issue a replacement Security or coupon if the
Company and the Trustee receive:
(1) evidence satisfactory to them of the loss, destruction or taking;
(2) an indemnity bond satisfactory to them; and
(3) payment of a sum sufficient to cover their expenses and any taxes for
replacing the Security or coupon.
A replacement Security shall have coupons attached corresponding to those, if
any, on the replaced Security.
Every replacement Security or coupon is an additional obligation of the
Company.
SECTION 2.09. Outstanding Securities.
The Securities outstanding at any time are all the Securities authenticated
by the Registrar except for those cancelled by it, those delivered to it for
cancellation, and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.08, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Security is held by a bona fide purchaser.
If Securities are considered paid under Section 4.01, they cease to be
outstanding and interest on them ceases to accrue.
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A Security does not cease to be outstanding because the Company or an
Affiliate holds the Security.
SECTION 2.10. Discounted Debt Securities.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, the principal
amount of a Discounted Debt Security shall be the amount of principal that would
be due as of the date of such determination if payment of the Security were
accelerated on that date.
SECTION 2.11. Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company or an Affiliate shall be disregarded, except that for the
purposes of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Securities which the Trustee knows are
so owned shall be so disregarded.
SECTION 2.12. Global Securities.
If the Securities Resolution so provides, the Company may issue some or all
of the Securities of a series in temporary or permanent global form. A global
Security may be in registered form, in bearer form with or without coupons or in
uncertificated form. A global Security shall represent that amount of Securities
of a series as specified in the global Security or as endorsed thereon from time
to time. At the Company's request, the Registrar shall endorse a global Security
to reflect the amount of any increase or decrease in the Securities represented
thereby.
The Company may issue a global Security only to a depository designated by
the Company. A depository may transfer a global Security only as a whole to its
nominee or to a successor depository.
The Securities Resolution may establish, among other things, the manner of
paying principal and interest on a global Security and whether and upon what
terms a beneficial owner of an interest in a global Security may exchange such
interest for definitive Securities.
The Company, an Affiliate, the Trustee and any Agent shall not be
responsible for any acts or omissions of a deposi-
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tory, for any depository records of beneficial ownership interests or for any
transactions between the depository and beneficial owners.
SECTION 2.13. Temporary Securities.
Until definitive Securities of a series are ready for delivery, the Company
may use temporary Securities. Temporary Securities shall be substantially in the
form of definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Temporary Securities may be in global
form. Temporary Bearer Securities may have one or more coupons or no coupons.
Without unreasonable delay, the Company shall deliver definitive Securities in
exchange for temporary Securities.
SECTION 2.14. Cancellation.
The Company at any time may deliver Securities to the Registrar for
cancellation. The Transfer Agent and the Paying Agent shall forward to the
Registrar any Securities and coupons surrendered to them for payment, exchange
or registration of transfer. The Registrar shall cancel all Securities or
coupons surrendered for payment, registration of transfer, exchange or
cancellation. The Registrar also will cancel all Bearer Securities and unmatured
coupons unless the Company requests the Registrar to hold the same for
redelivery. Any Bearer Securities so held shall be considered delivered for
cancellation under Section 2.09. The Registrar shall destroy cancelled
Securities and coupons unless the Company otherwise directs.
Unless the Securities Resolution otherwise provides, the Company may not
issue new Securities to replace Securities that the Company has paid or that the
Company has delivered to the Registrar for cancellation.
SECTION 2.15. Defaulted Interest.
If the Company defaults in a payment of interest on Registered Securities,
it need not pay the defaulted interest to Holders on the regular record date.
The Company may fix a special record date for determining Holders entitled to
receive defaulted interest, or the Company may pay defaulted interest in any
other lawful manner.
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ARTICLE 3 -- REDEMPTION
SECTION 3.01. Notices to Trustee.
Securities of a series that are redeemable before maturity shall be
redeemable in accordance with their terms and, unless the Securities Resolution
otherwise provides, in accordance with this Article.
In the case of a redemption by the Company, the Company shall notify the
Trustee of the redemption date and the principal amount of Securities to be
redeemed. The Company shall notify the Trustee at least 35 days before the
redemption date unless a shorter notice is satisfactory to the Trustee.
If the Company is required to redeem Securities, it may reduce the
principal amount of Securities required to be redeemed to the extent that it is
permitted a credit against such redemption requirement by the terms of the
Securities Resolution and notifies the Trustee of the amount of such credit and
the basis for it. If the reduction is based on a credit for acquired or redeemed
Securities that the Company has not previously delivered to the Registrar for
cancellation, the Company shall deliver the Securities at the same time as the
notice.
SECTION 3.02. Selection of Securities to Be Redeemed.
If less than all the Securities of a series are to be redeemed, the Trustee
shall select the Securities to be redeemed by a method the Trustee considers
fair and appropriate. The Trustee shall make the selection from Securities of
the series outstanding not previously called for redemption. The Trustee may
select for redemption portions of the principal of Securities having
denominations larger than the minimum denomination for the series. Securities
and portions thereof selected for redemption shall be in amounts equal to the
minimum denomination for the series or an integral multiple thereof. Provisions
of this Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption.
SECTION 3.03. Notice of Redemption.
At least 30 days before a redemption date, the Company shall mail a notice
of redemption by first-class mail to
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each Holder of Registered Securities whose Securities are to be redeemed.
If Bearer Securities are to be redeemed, the Company shall publish a notice
of redemption in an Authorized Newspaper as provided in the Securities.
A notice shall identify the Securities of the series to be redeemed and
shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption, together with all coupons, if
any, maturing after the redemption date, must be surrendered to the
Paying Agent to collect the redemption price;
(5) that interest on Securities called for redemption ceases to accrue on
and after the redemption date;
(6) whether the redemption by the Company is mandatory or optional; and
(7) whether the redemption is conditional as provided in Section 3.04, and
if so, the terms of the conditions, and that, if the conditions are
not satisfied or is not waived by the Company, the Securities will not
be redeemed and such a failure to redeem will not constitute an Event
of Default.
A redemption notice given by publication need not identify Registered
Securities to be redeemed.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at its expense.
SECTION 3.04. Effect of Notice of Redemption.
Except as provided below, once notice of redemption is given, Securities
called for redemption become due and payable on the redemption date at the
redemption price stated in the notice.
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A notice of redemption may provide that it is subject to the occurrence of
any event before the date fixed for such redemption as described in such notice
("Conditional Redemption"), and such notice of Conditional Redemption shall be
of no effect unless all such conditions to the redemption have occurred on or
before such date or have been waived by the Company in its sole discretion.
SECTION 3.05. Payment of Redemption Price.
On or before the redemption date, the Company shall deposit with the Paying
Agent money sufficient to pay the redemption price of and accrued interest on
all Securities to be redeemed on that date.
When the Holder of a Security surrenders it for redemption in accordance
with the redemption notice, the Company shall pay to the Holder on the
redemption date the redemption price and accrued interest to such date, except
that:
(1) the Company will pay any such interest (except defaulted interest) to
Holders on the record date of Registered Securities if the redemption
date occurs on an interest payment date; and
(2) the Company will pay any such interest to Holders of coupons that
mature on or before the redemption date upon surrender of such coupons
to the Paying Agent.
Coupons maturing after the redemption date on a called Security are void
absent a payment default on that date. Nevertheless, if a Holder surrenders for
redemption a Bearer Security missing any such coupons, the Company may deduct
the face amount of such coupons from the redemption price. If thereafter the
Holder surrenders to the Paying Agent the missing coupons, the Company will
return the amount so deducted. The Company may waive surrender of the missing
coupons if it receives an indemnity bond satisfactory to the Company.
SECTION 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Company shall
deliver to the Holder a new Security of the same series equal in principal
amount to the unredeemed portion of the Security surrendered.
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SECTION 3.07. Limited Right of Redemption at Option of Beneficial Owner.
If, and to the extent, the Securities Resolution establishing a Series so
provides, unless the Securities have been declared due and payable prior to
their maturity by reason of an Event of Default, commencing on a date specified
in such Securities Resolution (the "Section 3.07 Commencement Date") the
Representative (as defined below) of a deceased holder of an interest in the
Securities (a "Beneficial Owner") has the right to request redemption of all or
part of his or her interest in the Securities, expressed in integral multiples
of $1,000, for payment prior to maturity, and the Company will redeem the same
subject to the limitations that the Company will not be obligated to redeem
during a period or periods specified in such Securities Resolution (each a
"Section 3.07 Redemption Period"), (i) on behalf of the deceased Beneficial
Owner any interest in the Securities which exceeds an aggregate principal amount
specified in said Securities Resolution (the "Section 3.07 Individual Limit")
and (ii) interests in the Securities in the aggregate principal amount exceeding
such aggregate limit as is specified in the Securities Resolution establishing a
Series (the "Section 3.07 Aggregate Limit"). In the case of interests in the
Securities owned by a deceased Beneficial Owner, a request for redemption may be
presented to the Trustee at any time and in any principal amount. If the
Company, although not obligated to do so, chooses to redeem interests of a
deceased Beneficial Owner in the Securities in any such period in excess of the
Section 3.07 Individual Limit, such redemption, to the extent that it exceeds
the Section 3.07 Individual Limit for any Beneficial Owner, shall not be
included in the computation of the Section 3.07 Percentage Limit applicable to
the Series for such Section 3.07 Redemption Period.
Subject to the Section 3.07 Individual Limit and the Section 3.07 Aggregate
Limit applicable to a Series, the Company will upon the death of any Beneficial
Owner redeem the interest of the Beneficial Owner in the Securities within 60
days following receipt by the Trustee of a validly completed Redemption Request,
as hereinafter defined, including all supporting documentation, from such
Beneficial Owner's personal representative, or surviving joint tenant(s),
tenant(s) by the entirety or tenant(s) in common, or other persons entitled to
effect such a Redemption Request (each, a "Representative"). If Redemption
Requests exceed either the Section 3.07 Individual Limit and the Section 3.07
Aggregate Limit then such excess Redemption Request (subject in the case of the
Section 3.07 Individual Limit to the provisions of the last sentence of the
pre-
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ceding paragraph) will be applied to successive Section 3.07 Redemption Periods
in the order of receipt for prepayment, regardless of the number of Section 3.07
Redemption Periods required to redeem such interest unless sooner withdrawn as
described below.
A request for redemption of an interest in the Securities may be made by
delivering a request to the depositary, if any, in whose names the certificate
or certificates representing such Securities (the "Depositary") in the case of a
participant in the system of such Depositary, including securities brokers and
dealers, banks and trust companies that clear through or maintain a custodial
relationship with such a participant, either directly or indirectly (a
"Participant"), which is the Beneficial Owner of such interest, or to the
Participant through whom the Beneficial Owner owns such interest, in form
satisfactory to the Participant, together with evidence of death of the
Beneficial Owner and the authority of the Representative satisfactory to the
Participant and the Trustee. A Representative of a deceased Beneficial Owner may
make the request for redemption and shall submit such other evidence of the
right to such redemption as the Participant or Trustee shall require. The
request shall specify the principal amount of the Securities to be redeemed. A
request for redemption in form satisfactory to the Participant and accompanied
by the documents relevant to the request as above provided, together with a
certification by the Participant that it holds the interest on behalf of the
deceased Beneficial Owner with respect to whom the request for redemption is
being made (the "Redemption Request") shall be provided to the Depositary by a
Participant and the Depositary will forward the request to the Trustee.
Redemption Requests, including all supporting documentation, shall be in the
form satisfactory to the Trustee and no request for redemption shall be
considered validly made until the Redemption Request and all supporting
documentation, in form satisfactory to the Trustee, shall have been received by
the Trustee.
The price to be paid by the Company for an interest in the Securities to be
redeemed pursuant to a request from a deceased Beneficial Owner's Representative
is one hundred percent (100%) of the principal amount thereof, unless otherwise
specified in the Securities Resolution authorizing a series, plus accrued but
unpaid interest to the date of redemption. Subject to arrangements with the
Depositary, payment for interests in the Securities which are to be redeemed
shall be made to the Depositary within 60 days following receipt by the Trustee
of the Redemption Request, including all supporting docu-
-19-
mentation, and the Securities to be redeemed in the aggregate principal amount
specified in the Redemption Requests submitted to the Trustee by the Depositary
which are to be fulfilled in connection with such payment. An acquisition of
Securities by the Company or its subsidiaries other than by redemption at the
option of any Representative of a deceased Beneficial Owner shall not be
included in the computation of either the Section 3.07 Individual Limit or
relevant Section 3.07 Aggregate Limit for any Section 3.07 Redemption Period.
Interests in the Securities held in tenancy by the entirety, joint tenancy
or by tenants in common will be deemed to be held by a single Beneficial Owner
and the death of a tenant in common, tenant by the entirety or joint tenant will
be deemed to be the death of the Beneficial Owner. The death of a person who,
during such person's lifetime, was entitled to substantially all of the rights
of a Beneficial Owner will be deemed the death of the Beneficial Owner,
regardless of the recordation of such interest on the records of the
Participant, if such rights can be established to the satisfaction of the
Participant and the Trustee.
Any Redemption Request may be withdrawn upon delivery of a written request
for such withdrawal given to the Trustee by the Depositary prior to payment of
the redemption price of the interest in the Securities.
ARTICLE 4 -- COVENANTS
SECTION 4.01. Payment of Securities.
The Company shall pay the principal of and interest on a series in
accordance with the terms of the Securities for the series, any related coupons,
and this Indenture. Principal and interest on a series shall be considered paid
on the date due if the Paying Agent for the series holds on that date money
sufficient to pay all principal and interest then due on the series.
SECTION 4.02. Overdue Interest.
Unless the Securities Resolution otherwise provides, the Company shall pay
interest on overdue principal of a Security of a series at the rate (or yield to
maturity in the case of a Discounted Debt Security) borne by the series; the
Company
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shall pay interest on overdue installments of interest at the same rate or yield
to maturity to the extent lawful.
SECTION 4.03. No Lien Created, etc.
This Indenture and the Securities do not create a Lien, charge or
encumbrance on any property of the Company or any Subsidiary.
SECTION 4.04. Compliance Certificate.
The Company shall deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company, a brief certificate signed by the principal
executive officer, principal financial officer or principal accounting officer
of the Company, as to the signer's knowledge of the Company's compliance with
all conditions and covenants under this Indenture (determined without regard to
any period of grace or requirement of notice provided herein).
Any other obligor on the Securities shall also deliver to the Trustee such
a certificate as to its compliance with this Indenture within 120 days after the
end of each of its fiscal years.
The certificates need not comply with Section 11.04.
SECTION 4.05. SEC Reports.
The Company shall file with the Trustee, within 15 days after the Company
is required to file the same with the SEC, copies of the annual reports and of
the information, documents, and other reports (or such portions of the foregoing
as the SEC may prescribe) which the Company is required to file with the SEC
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934.
Any other obligor on the Securities shall do likewise as to the above items
which it is required to file with the SEC pursuant to those sections.
-21-
ARTICLE 5 -- SUCCESSORS
SECTION 5.01. When Company May Merge, etc.
Unless the Securities Resolution establishing a series otherwise provides,
the Company shall not consolidate with or merge into, or transfer all or
substantially all of its assets to, any person in any transaction in which the
Company is not the survivor unless:
(1) the person is organized under the laws of the United States or a State
thereof or is organized under the laws of a foreign jurisdiction and
consents to the jurisdiction of the courts of the United States or a
State thereof;
(2) the person assumes by supplemental indenture all the obligations of
the Company under this Indenture, the Securities and any coupons;
(3) all required approvals of any regulatory body having jurisdiction over
the transaction shall have been obtained; and
(4) immediately after the transaction no Default exists.
The successor shall be substituted for the Company, and thereafter all
obligations of the Company under this Indenture, the Securities and any coupons
shall terminate.
ARTICLE 6 -- DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.
Unless the Securities Resolution otherwise provides, an "Event of Default"
on a series occurs if:
(1) the Company defaults in any payment of interest on any Securities of
the series when the same becomes due and payable and the Default
continues for a period of 60 days;
(2) the Company defaults in the payment of the principal and premium, if
any, of any Securities of
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the series when the same becomes due and payable at maturity or upon
redemption, acceleration or otherwise, and such default shall continue
for five or more days;
(3) the Company defaults in the payment or satisfaction of any sinking
fund obligation with respect to any Securities of the series as
required by the Securities Resolution establishing such series and the
Default continues for a period of 60 days; (4) the Company defaults in
the performance of any of its other agreements applicable to the
series and the Default continues for 90 days after the notice
specified below;
(5) the Company pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an
involuntary case,
(C) consents to the appointment of a Custodian for it or for all or
substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
(6) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case,
(B) appoints a Custodian for the Company or for all or substantially
all of its property, or
(C) orders the liquidation of the Company;
and the order or decree remains unstayed and in effect for 60 days; or
-23-
(7) there occurs any other Event of Default provided for in the series.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar Federal
or State law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator or a similar official under any Bankruptcy Law.
A Default under clause (4) is not an Event of Default until the Trustee or
the Holders of at least 33-1/3% in principal amount of the series notify the
Company of the Default and the Company does not cure the Default within the time
specified after receipt of the notice. The notice must specify the Default,
demand that it be remedied and state that the notice is a "Notice of Default."
If Holders notify the Company of a Default, they shall notify the Trustee at the
same time.
The failure to redeem any Security subject to a Conditional Redemption is
not an Event of Default if any event on which such redemption is so conditioned
does not occur and is not waived before the scheduled redemption date.
SECTION 6.02. Acceleration.
If an Event of Default occurs and is continuing on a series, the Trustee by
notice to the Company, or the Holders of at least 33-1/3% in principal amount of
the series by notice to the Company and the Trustee, may declare the principal
of and accrued interest on all the Securities of the series to be due and
payable immediately. Discounted Debt Securities may provide that the amount of
principal due upon acceleration is less than the stated principal amount.
The Holders of a majority in principal amount of the series by notice to
the Trustee may rescind an acceleration and its consequences if the rescission
would not conflict with any judgment or decree and if all existing Events of
Default on the series have been cured or waived except nonpayment of principal
or interest that has become due solely because of the acceleration.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing on a series, the Trustee
may pursue any available remedy to collect principal or interest then due on the
series, to enforce the performance of any provision applicable to the series, or
oth-
-24-
erwise to protect the rights of the Trustee and Holders of the series.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities or coupons or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Securityholder in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
Unless the Securities Resolution otherwise provides, the Holders of a
majority in principal amount of a series by notice to the Trustee may waive an
existing Default on the series and its consequences except:
(1) a Default in the payment of the principal of or interest on the
series, or
(2) a Default in respect of a provision that under Section 10.02 cannot be
amended without the consent of each Securityholder affected.
SECTION 6.05. Control by Majority.
The Holders of a majority in principal amount of a series may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or of exercising any trust or power conferred on the Trustee, with
respect to the series. However, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture or if the Trustee in good faith shall
determine that the action or direction might involve the Trustee in personal
liability.
SECTION 6.06. Limitation on Suits.
A Securityholder of a series may pursue a remedy with respect to the series
only if:
(1) the Holder gives to the Trustee notice of a continuing Event of
Default on the series;
(2) the Holders of at least 33-1/3% in principal amount of the series make
a request to the Trustee to pursue the remedy;
-25-
(3) such Holder or Holders offer to the Trustee indemnity satisfactory to
the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in principal
amount of the series do not give the Trustee a direction inconsistent
with such request.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over another
Securityholder.
SECTION 6.07. Collection Suit by Trustee.
If an Event of Default in payment of interest, principal or sinking fund
specified in Section 6.01(1), (2) or (3) occurs and is continuing on a series,
the Trustee may recover judgment in its own name and as trustee of an express
trust against the Company for the whole amount of principal and interest
remaining unpaid on the series.
SECTION 6.08. Priorities.
If the Trustee collects any money for a series pursuant to this Article, it
shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.06;
Second: to Securityholders of the series for amounts due and unpaid
for principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable for principal and interest,
respectively; and
Third: to the Company.
The Trustee may fix a payment date for any payment to Securityholders.
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ARTICLE 7 -- TRUSTEE
SECTION 7.01. Rights of Trustee.
(1) The Trustee may rely on any document believed by it to be genuine and
to have been signed or presented by the proper person. The Trustee
need not investigate any fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not
be liable for any action it takes or omits to take in good faith in
reliance on the Certificate or Opinion.
(3) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(4) The Trustee shall not be liable for any action it takes or omits to
take in good faith in accordance with a direction received by it
pursuant to Section 6.05.
(5) The Trustee may refuse to perform any duty or exercise any right or
power which it reasonably believes may expose it to any loss,
liability or expense unless it receives indemnity satisfactory to it
against such loss, liability or expense.
(6) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to
the extent required by law.
(7) The Trustee shall have no duty with respect to a Default unless it has
actual knowledge of the Default. As used herein, the term "actual
knowledge" means the actual fact or statement of knowing, without any
duty to make any investigation with regard thereto.
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(8) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized and within its
powers.
(9) Any Agent shall have the same rights and be protected to the same
extent as if it were Trustee.
(10) The Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
SECTION 7.02. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities or coupons and may otherwise deal with the Company or an
Affiliate with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights.
SECTION 7.03. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of this
Indenture or the Securities or any coupons; it shall not be accountable for the
Company's use of the proceeds from the Securities; it shall not be responsible
for any statement in the Securities or any coupons; it shall not be responsible
for any overissue; it shall not be responsible for determining whether the form
and terms of any Securities or coupons were established in conformity with this
Indenture; and it shall not be responsible for determining whether any
Securities were issued in accordance with this Indenture.
SECTION 7.04. Notice of Defaults.
If a Default occurs and is continuing on a series and if the Trustee has
actual knowledge of such Default, the Trustee shall mail a notice of the Default
within 90 days after it occurs to Holders of Registered Securities of the
series. Except in the case of a Default in payment on a series, the Trustee may
withhold the notice if and so long as a committee of its Trust Officers in good
faith determines that withholding the notice is in the interest of Holders of
the series. The Trustee shall withhold notice of a Default described in Section
6.01(4) until at least 90 days after it occurs.
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SECTION 7.05. Reports by Trustee to Holders.
Any report required by TIA ss. 313(a) to be mailed to Securityholders shall
be mailed by the Trustee on or before July 15 of each year.
A copy of each report at the time of its mailing to Securityholders shall
be filed with the SEC and each stock exchange on which any Securities are
listed. The Company shall notify the Trustee when any Securities are listed on a
stock exchange.
SECTION 7.06. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be limited
by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred by it. Such expenses shall include the reasonable compensation and
expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any loss or liability
incurred by it. The Trustee shall notify the Company promptly of any claim for
which it may seek indemnity. The Company shall defend the claim and the Trustee
shall cooperate in the defense. The Trustee may have separate counsel and the
Company shall pay the reasonable fees and expenses of such counsel. The Company
need not pay for any settlement made without its consent.
The Company need not reimburse any expense or indemnify against any loss or
liability incurred by the Trustee through negligence or willful misconduct.
To secure the Company's payment obligations in this Section, the Trustee
shall have a lien prior to the Securities and any coupons on all money or
property held or collected by the Trustee, except that held in trust to pay
principal or interest on particular securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(5) or (6) occurs, such expenses and the
compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law.
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The provisions of this Section shall survive any termination or discharge
of this Indenture (including without limitation any termination under any
Bankruptcy Law) and the resignation or removal of the Trustee.
SECTION 7.07. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the Securities may remove the Trustee by so
notifying the Trustee and may appoint a successor Trustee with the Company's
consent.
The Company may remove the Trustee if:
(1) the Trustee fails to comply with TIAss.310(a) orss.310(b) or with
Section 7.09;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a Custodian or other public officer takes charge of the Trustee or its
property;
(4) the Trustee becomes incapable of acting; or
(5) an event of the kind described in Section 6.01(5) or (6) occurs with
respect to the Trustee.
The Company also may remove the Trustee with or without cause if the
Company so notifies the Trustee three months in advance and if no Default occurs
during the three-month period.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
Trustee.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in principal amount of the Securities may petition any
court of
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competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with TIA ss. 310(a) or ss. 310(b) or with
Section 7.09, any Securityholder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon the resignation or removal
of the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Holders of Registered
Securities. The retiring Trustee shall promptly transfer all property held by it
as Trustee to the successor Trustee, subject to the lien provided for in Section
7.06.
SECTION 7.08. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act shall be the successor Trustee.
SECTION 7.09. Trustee's Capital and Surplus.
The Trustee at all times shall have a combined capital and surplus of at
least $50,000,000 as set forth in its most recent published report of financial
condition.
ARTICLE 8 -- DISCHARGE OF INDENTURE
SECTION 8.01. Defeasance.
Securities of a series may be defeased in accordance with their terms and,
unless the Securities Resolution otherwise provides, in accordance with this
Article.
The Company at any time may terminate as to a series all of its obligations
under this Indenture, the Securities of the series and any related coupons
("legal defeasance option"). The Company at any time may terminate as to a
series its obligations, if any, under any restrictive covenants which may be
applicable to a particular series ("covenant defeasance op-
-31-
tion"). However, in the case of the legal defeasance option, the Company's
obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 7.06, 7.07 and 8.04
shall survive until the Securities of the series are no longer outstanding;
thereafter the Company's obligations in Section 7.06 shall survive.
The Company may exercise its legal defeasance option notwithstanding its
prior exercise of its covenant defeasance option. If the Company exercises its
legal defeasance option, a series may not be accelerated because of an Event of
Default. If the Company exercises its covenant defeasance option, a series may
not be accelerated by reference to any restrictive covenants which may be
applicable to such series.
The Trustee upon request shall acknowledge in writing the discharge of
those obligations or restrictions that the Company terminates by defeasance.
SECTION 8.02. Conditions to Defeasance.
The Company may exercise as to a series its legal defeasance option or its
covenant defeasance option if:
(1) the Company irrevocably deposits in trust with the Trustee or another
trustee money or U.S. Government Obligations;
(2) the Company delivers to the Trustee a certificate from a nationally
recognized firm of independent accountants expressing their opinion
that the payments of principal and interest when due on the deposited
U.S. Government Obligations without reinvestment plus any deposited
money without investment will provide cash at such times and in such
amounts as will be sufficient to pay principal and interest when due
on all the Securities of the series to maturity or redemption, as the
case may be;
(3) immediately after the deposit no Default exists;
(4) the deposit does not constitute a default under any other agreement
binding on the Company;
(5) the deposit does not cause the Trustee to have a conflicting interest
under TIA ss. 310(a) or ss. 310(b) as to another series;
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(6) the Company delivers to the Trustee an Opinion of Counsel to the
effect that Holders of the series will not recognize income, gain or
loss for Federal income tax purposes as a result of the defeasance;
and
(7) 91 days pass after the deposit is made and during the 91-day period no
Default specified in Section 6.01(5) or (6) occurs that is continuing
at the end of the period.
Before or after a deposit the Company may make arrangements satisfactory to
the Trustee for the redemption of Securities at a future date in accordance with
Article 3.
"U.S. Government Obligations" means direct obligations of (i) the United
States or (ii) an agency or instrumentality of the United States, the payment of
which is unconditionally guaranteed by the United States, which, in either case,
have the full faith and credit of the United States pledged for payment and
which are not callable at the issuer's option, or certificates representing an
ownership interest in such obligations.
SECTION 8.03. Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 8.02. It shall apply the deposited money
and the money from U.S. Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of principal and interest on
Securities of the defeased series.
SECTION 8.04. Repayment to Company.
The Trustee and the Paying Agent shall promptly turn over to the Company
upon request any excess money or securities held by them at any time.
The Trustee and the Paying Agent shall pay to the Company upon request any
money held by them for the payment of principal or interest that remains
unclaimed for two years. After payment to the Company, Securityholders entitled
to the money must look to the Company for payment as unsecured general creditors
unless an abandoned property law designates another person.
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ARTICLE 9 -- CONVERSION
SECTION 9.01. Conversion Privilege.
If the Securities Resolution establishing the terms of a series of
Securities so provides, Securities of any series may be convertible at the
option of the holders into or for Common Stock or other equity or debt
securities (a "Conversion Right"). The Securities Resolution may establish,
among other things, the Conversion Rate, provisions for adjustments to the
Conversion Rate and limitations upon exercise of the Conversion Right.
Unless the Securities Resolution otherwise provides, a Holder may convert a
portion of a Security if the portion is $1,000 or in integral multiples thereof.
Provisions of this Indenture that apply to the conversion of the aggregate
principal amount of a Security also apply to conversion of a portion of it.
The Securities Resolution providing for Securities with a Conversion Right
may establish any terms in addition to, or other than (including terms
inconsistent with), those set forth in this Article 9 with respect to the
Conversion of the Securities established thereby (other than those of Section
9.16).
SECTION 9.02. Conversion Procedure.
To convert a Security a Holder must satisfy all requirements in the
Securities or the Securities Resolution and (i) complete and manually sign the
conversion notice (the "Conversion Notice") provided for in the Securities
Resolution or the Security (or complete and manually sign a facsimile thereof)
and deliver such notice to the Conversion Agent or any other office or agency
maintained for such purpose, (ii) surrender the Security to the Conversion Agent
or at such other office or agency by physical delivery, (iii) if required,
furnish appropriate endorsements and transfer documents, and (iv) if required,
pay all transfer or similar taxes. The date on which such notice shall have been
received by and the Security shall have been so surrendered to the Conversion
Agent is the "Conversion Date." Such Conversion Notice shall be irrevocable and
may not be withdrawn by a Holder for any reason.
The Company will complete settlement of any conversion of Securities not
later than the fifth business day fol-
-34-
lowing the Conversion Date in respect of the cash portion elected to be
delivered in lieu of the securities into which the Security is convertible and
not later than the seventh business day following the Conversion Date in respect
of the portion to be settled in such securities.
If any Security is converted between the record date for the payment of
interest and the next succeeding interest payment date, such Security must be
accompanied by funds equal to the interest payable on such succeeding interest
payment date on the principal amount so converted (unless such Security shall
have been called for redemption during such period, in which case no such
payment shall be required). A Security converted on an interest payment date
need not be accompanied by any payment, and the interest on the principal amount
of the Security being converted will be paid on such interest payment date to
the registered holder of such Security on the immediately preceding record date.
Subject to the aforesaid right of the registered holder to receive interest, no
payment or adjustment will be made on conversion for interest accrued on the
converted Security or for interest, dividends or other distributions payable on
any security issued on conversion.
If a Holder converts more than one Security at the same time, the
securities into which the Security is convertible issuable or cash payable upon
the conversion shall be based on the total principal amount of the Securities
converted.
Upon surrender of a Security that is converted in part the Trustee shall
authenticate for the Holder a new Security equal in principal amount to the
unconverted portion of the Security surrendered; except that if a global
Security is so surrendered the Trustee shall authenticate and deliver to the
Depositary a new global Security in a denomination equal to and in exchange for
the unconverted portion of the principal of the global Security so surrendered.
If the last day on which a Security may be converted is a Legal Holiday in
a place where a Conversion Agent is located, the Security may be surrendered to
that Conversion Agent on the next succeeding day that is not a Legal Holiday.
SECTION 9.03. Taxes on Conversion.
If a Holder of a Security exercises a Conversion Right, the Company shall
pay any documentary, stamp or similar issue or transfer tax due on the issue of
the securities into which the Security is convertible upon the conversion.
How-
-35-
ever, the Holder shall pay any such tax which is due because securities or other
property are issued in a name other than the Holder's name. Nothing herein shall
preclude any income tax or other withholding required by law or regulations.
SECTION 9.04. Company Determination Final.
Any determination that the Board of Directors makes pursuant to this
Article 9 or consistent with terms provided for in any Securities Resolution is
conclusive, absent manifest error.
SECTION 9.05. Trustee's and Conversion Agent's Disclaimer.
The Trustee (and each Conversion Agent other than the Company) has no duty
to determine when or if an adjustment under this Article 9 or any Securities
Resolution should be made, how it should be made or calculated or what it should
be. The Trustee (and each Conversion Agent other than the Company) makes no
representation as to the validity or value of any securities issued upon
conversion of Securities. The Trustee (and each Conversion Agent other than the
Company) shall not be responsible for the Company's failure to comply with this
Article 9 or any provision of a Securities Resolution relating to a Conversion
Right.
SECTION 9.06. Company to Provide Conversion Securities.
The Company shall reserve out of its authorized but unissued Common Stock
or its Common Stock held in treasury sufficient shares to permit the conversion
of all of the Securities convertible into Common Stock. The Company shall
arrange and make available for issuance upon conversion the full amount of any
other securities into which the Securities are convertible to permit such
conversion of the Securities.
All shares of Common Stock or other equity securities of any person which
may be issued upon conversion of the Securities shall be validly issued, fully
paid and non-assessable.
The Company will comply with all securities laws regulating the offer and
delivery of securities upon conversion of Securities.
SECTION 9.07. Cash Settlement Option.
If the Securities Resolution so provides, the Company may elect to satisfy,
in whole or in part, a Conversion Right
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of Securities convertible into Common Stock or other securities of any person by
the delivery of cash. The amount of cash to be delivered shall be equal to the
Market Price on the last Trading Day preceding the applicable Conversion Date of
a share of Common Stock or other securities of any person into which the
Securities are convertible multiplied by the number of shares of Common Stock or
the number of shares or principal amount of other securities into which the
Securities are convertible, respectively, in respect of which the Company elects
to deliver cash. If the Company elects to satisfy, in whole or in part, a
Conversion Right by the delivery of shares of Common Stock or other securities,
no fractional shares or portion of other securities will be delivered. Instead,
the Company will pay cash based on the Market Price for such fractional share of
Common Stock or portion of other securities.
The "Market Price" of the Common Stock into which Securities or other
equity securities into which the Securities are convertible may be converted
pursuant to a Securities Resolution or this Article 9 on any Trading Day means
the weighted average per share sale price for all sales of the Common Stock or
other equity securities on such Trading Day (or, if the information necessary to
calculate such weighted average per share sale price is not reported, the
average of the high and low sale prices, or if no sales are reported, the
average of the bid and ask prices or, if more than one in either case, the
average of the average bid and average ask prices), as reported in the composite
transactions for the New York Stock Exchange, or if the Common Stock or other
equity securities into which the Securities are convertible are not listed or
admitted to trading on such exchange, as reported in the composite transactions
for the principal national or regional United States securities exchange on
which the Common Stock or other equity securities into which the Securities are
convertible are listed or admitted to trading or, if the Common Stock or other
equity securities into which the Securities are convertible are not listed or
admitted to trading on a United States national or regional securities exchange,
as reported by NASDAQ or by the National Quotation Bureau Incorporated, or if
not so reported, as determined in the manner set forth in the appropriate
Securities Resolution. In the absence of such quotations, the Company shall be
entitled to determine the Market Price on the basis of such quotations as it
considers appropriate.
The "Market Price" of any debt security into which Securities are
convertible shall be determined as set forth in the applicable Securities
Resolution.
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SECTION 9.08. Adjustment in Conversion Rate for Change in Capital Stock.
If the Securities are convertible into Common Stock and the Company:
(1) pays a dividend or makes a distribution on its Common Stock in shares
of its Common Stock;
(2) subdivides its outstanding shares of Common Stock into a greater
number of shares;
(3) combines its outstanding shares of Common Stock into a smaller number
of shares;
(4) pays a dividend or makes a distribution on its Common Stock in shares
of its Capital Stock other than Common Stock; or
(5) issues by reclassification of its Common Stock any shares of its
Capital Stock,
then the conversion privilege and the Conversion Rate in effect immediately
prior to such action shall be adjusted so that the Holder of a Security
thereafter converted may receive the number of shares of Capital Stock of the
Company (or, at the Company's option, an equivalent amount in cash) which he
would have owned immediately following such action if he had converted the
Security immediately prior to such action.
The adjustment shall become effective immediately after the record date in
the case of a dividend or distribution and immediately after the effective date
in the case of a subdivision, combination or reclassification.
If the security into which the Securities are convertible is other than
Common Stock of the Company, the conversion rate shall be subject to adjustment
as set forth in the applicable Securities Resolution.
If after an adjustment a Holder of a Security may, upon conversion, receive
shares of two or more classes of Capital Stock of the Company or other
securities, the Board of Directors of the Company shall determine the allocation
of the adjusted Conversion Rate between or among the classes of Capital Stock or
other securities. After such allocation, the conversion privilege and the
Conversion Rate of each class of Capital Stock or other securities shall
thereafter be subject
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to adjustment on terms comparable to those applicable to Common Stock in this
Article or in such Securities Resolution.
SECTION 9.09. Adjustment in Conversion Rate for Common Stock
Issued Below Market Price.
If the Securities are convertible into Common Stock, and the Company issues
to all holders of Common Stock rights, options or warrants to subscribe for or
purchase shares of Common Stock, or any securities convertible into or
exchangeable for shares of Common Stock, or rights, options or warrants to
subscribe for or purchase such convertible or exchangeable securities at a Price
Per Share (as defined and determined according to the formula given below) lower
than the current Market Price on the date of such issuance, the Conversion Rate
shall be adjusted in accordance with the following formula:
R
-
AC = CC x O + M
-----
O + N
where:
AC = the adjusted Conversion Rate.
CC = the then current Conversion Rate.
O = the number of shares of Common Stock outstanding immediately prior to
such issuance (which number shall include shares owned or held by or
for the account of the Company).
N = the "Number of Shares," which (i) in the case of rights, options or
warrants to subscribe for or purchase shares of Common Stock or of
securities convertible into or exchangeable for shares of Common Stock, is
the maximum number of shares of Common Stock initially issuable upon
exercise, conversion or exchange thereof; and (ii) in the case of rights,
options or warrants to subscribe for or purchase convertible or
exchangeable securities, is the maximum number of shares of Common Stock
initially issuable upon the conversion or exchange of the convertible or
exchangeable securities issuable upon the exercise of such rights, options
or warrants.
R = the proceeds received or receivable by the Company, which (i) in the case
of rights, options or warrants to subscribe for or purchase shares of
Common Stock or of securities convertible into or exchangeable for shares
of Com-
-39-
mon Stock, is the aggregate amount received or receivable by the Company in
consideration for the sale and issuance of such rights, options, warrants
or convertible or exchangeable securities, plus the minimum aggregate
amount of additional consideration, other than the convertible or
exchangeable securities, payable to the Company upon exercise, conversion
or exchange thereof; and (ii) in the case of rights, options or warrants to
subscribe for or purchase convertible or exchangeable securities, is the
aggregate amount received or receivable by the Company in consideration for
the sale and issuance of such rights, options or warrants, plus the minimum
aggregate consideration payable to the Company upon the exercise thereof,
plus the minimum aggregate amount of additional consideration, other than
the convertible or exchangeable securities, payable upon the conversion or
exchange of the convertible or exchangeable securities; provided, that in
each case the proceeds received or receivable by the Company shall be
deemed to be the amount of gross cash proceeds without deducting therefrom
any compensation paid or discount allowed in the sale, underwriting or
purchase thereof by underwriters or dealers or others performing similar
services or any expenses incurred in connection therewith.
M = the current Market Price per share of Common Stock on the date of
issue of the rights, options or warrants to subscribe for or purchase
shares of Common Stock or the securities convertible into or exchangeable
for shares of Common Stock or the rights, options or warrants to subscribe
for or purchase convertible or exchangeable securities.
"Price Per Share" shall be defined and determined according to the
following formula:
P = R
---
N
where:
P = Price Per Share
and R and N have the meanings assigned above.
If the Company shall issue rights, options, warrants or convertible or
exchangeable securities with respect to its Common Stock for a consideration
consisting, in whole or in part, of property other than cash the amount of such
considera-
-40-
tion shall be determined in good faith by the Board of Directors whose
determination shall be conclusive and evidenced by a resolution of the Board of
Directors filed with the Trustee.
The adjustment shall be made successively whenever any such additional
rights, options, warrants or convertible or exchangeable securities with respect
to its Common Stock are issued, and shall become effective immediately after the
date of issue of such shares, rights, options, warrants or convertible or
exchangeable securities.
To the extent that such rights, options or warrants to acquire Common Stock
expire unexercised or to the extent any convertible or exchangeable securities
with respect to its Common Stock are redeemed by the Company or otherwise cease
to be convertible or exchangeable into shares of Common Stock, the Conversion
Rate shall be readjusted to the Conversion Rate which would then be in effect
had the adjustment made upon the date of issuance of such rights, options,
warrants or convertible or exchangeable securities been made upon the basis of
the issuance of rights, options or warrants to subscribe for or purchase only
the number of shares of Common Stock as to which such rights, options or
warrants were actually exercised and the number of shares of Common Stock that
were actually issued upon the conversion or exchange of the convertible or
exchangeable securities.
If the Securities are convertible into securities other than the Common
Stock, any adjustment in the Conversion Rate required for the issuance or sale
of the securities into which the Securities are convertible shall be made as set
forth in the Securities Resolution.
SECTION 9.10. Adjustment for Other Distributions.
If the Securities are initially convertible into Common Stock and the
Company distributes to all holders of its Common Stock any of its assets or debt
securities or any rights or warrants to purchase assets or debt securities of
the Company, the Conversion Rate shall be adjusted in accordance with the
following formula:
AC = CC x (O x M)
------------
(O x M) - F
where:
AC = the adjusted Conversion Rate.
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CC = the then current Conversion Rate.
O = the number of shares of Common Stock outstanding on the record date
mentioned below (which number shall include shares owned or held by or
for the account of the Company).
M = the current Market Price per share of Common Stock on the record date
mentioned below.
F = the fair market value on the record date of the assets, securities,
rights or warrants distributed. The Board of Directors of the Company
shall determine the fair market value.
The adjustment shall become effective immediately after the record date for
the determination of stockholders entitled to receive the distribution.
If the securities into which the Securities are convertible are other than
Common Stock, any adjustments for such other distribution shall be made as set
forth in the Securities Resolution.
This Section does not apply to cash dividends or distributions or to
reclassifications or distributions referred to in Section 9.08. Also, this
Section does not apply to shares issued below Market Price referred to in
Section 9.09.
SECTION 9.11. Voluntary Adjustment.
The Company at any time may increase the Conversion Rate, temporarily or
otherwise, by any amount but in no event shall such Conversion Rate result in
the issuance of Capital Stock at a price less than the par value of such Capital
Stock at the time such increase is made.
SECTION 9.12. When Adjustment May Be Deferred.
No adjustment in the Conversion Rate need be made unless the adjustment
would require a change of at least 1% in the Conversion Rate. Any adjustments
that are not made due to the immediately preceding sentence shall be carried
forward and taken into account in any subsequent adjustment; provided, that any
adjustment carried forward shall be deferred not in excess of three years,
whereupon any adjustment to the Conversion Rate will be effected.
-42-
All calculations under this Article 9 shall be made to the nearest cent or
to the nearest 1/100th of a share, as the case may be.
SECTION 9.13. When No Adjustment Required.
Except as set forth in Section 9.09, no adjustment in the Conversion Rate
shall be made because the Company issues, in exchange for cash, property or
services, shares of Common Stock, or any securities convertible into shares of
Common Stock, or securities carrying the right to purchase shares of Common
Stock or such convertible securities.
No adjustment in the Conversion Rate need be made for rights to purchase or
the sale of Common Stock pursuant to a Company plan providing for reinvestment
of dividends or interest.
No adjustment in the Conversion Rate need be made for a change in the par
value of the Common Stock or other securities having a par value.
No adjustment need be made for a transaction referred to in Section 9.08,
9.09 or 9.10 if Securityholders are to participate in the transaction on a basis
and with notice that the Board of Directors determines to be fair and
appropriate in light of the basis and notice on which holders of Common Stock or
other securities into which the Securities are convertible participate in the
transaction.
SECTION 9.14. Notice of Adjustment.
Whenever the Conversion Rate is adjusted, the Company shall promptly mail
to Holders of Securities affected a notice of the adjustment. The Company shall
file with the Trustee an Officers' Certificate or a certificate from the
Company's independent public accountants stating the facts requiring the
adjustment and the manner of computing it. The certificate shall be conclusive
evidence that the adjustment is correct, absent manifest error.
SECTION 9.15. Notice of Certain Transactions.
If:
(1) the Company proposes to take any action that would require an
adjustment in the Conversion Rate,
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(2) the Company proposes to take any action that would require a
supplemental indenture pursuant to Section 9.16, or
(3) there is a proposed liquidation or dissolution of the Company or of
the issuer of any other security into which the Securities are
convertible,
the Company shall mail to registered Holders of Securities of any affected
series a notice stating the proposed record date for a dividend or distribution
or the proposed effective date of a subdivision, combination, reclassification,
consolidation, merger, transfer, lease, liquidation or dissolution. The Company
shall mail the notice at least 15 days before such date. Failure to mail the
notice or any defect in it shall not affect the validity of the transaction.
SECTION 9.16. Reorganization of the Company.
If the Company is a party to a transaction subject to Section 5.01, the
successor corporation (if other than the Company) shall enter into a
supplemental indenture which shall provide that the Holder of a Security may
convert it into the kind and amount of securities, cash or other assets which he
would have owned immediately after the consolidation, merger or transfer if he
had converted the Security immediately before the effective date of the
transaction. The supplemental indenture shall provide for adjustments which
shall be as nearly equivalent as may be practical to the adjustments provided
for in this Article. The successor company shall mail to Holders of Securities
of any affected series a notice briefly describing the supplemental indenture.
If this Section applies, Sections 9.08, 9.09 and 9.10 do not apply.
ARTICLE 10 -- AMENDMENTS
SECTION 10.01. Without Consent of Holders.
The Company and the Trustee may amend this Indenture, the Securities or any
coupons without the consent of any Securityholder:
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(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article 5 or Section 9.16;
(3) to provide that specific provisions of this Indenture shall not apply
to a series not previously issued;
(4) to create a series and establish its terms;
(5) to provide for a separate Trustee for one or more series; or
(6) to make any change that does not materially adversely affect the
rights of any Securityholder.
SECTION 10.02. With Consent of Holders.
Unless the Securities Resolution otherwise provides, the Company and the
Trustee may amend this Indenture, the Securities and any coupons with the
written consent of the Holders of a majority in principal amount of the
Securities of all series affected by the amendment voting as one class. However,
without the consent of each Securityholder affected, an amendment under this
Section may not:
(1) reduce the amount of Securities whose Holders must consent to an
amendment;
(2) reduce the interest on or change the time for payment of interest on
any Security;
(3) change the fixed maturity of any Security;
(4) reduce the principal of any non-Discounted Debt Security or reduce the
amount of principal of any Discounted Debt Security that would be due
upon an acceleration thereof;
(5) change the currency in which principal or interest on a Security is
payable;
(6) make any change that materially adversely affects the right to convert
any Security; or
(7) make any change in Section 6.04 or 10.02, except to increase the
amount of Securities whose Hold-
-45-
ers must consent to an amendment or waiver or to provide that other
provisions of this Indenture cannot be amended or waived without the
consent of each Securityholder affected thereby.
An amendment of a provision included solely for the benefit of one or more
series does not affect Securityholders of any other series.
Securityholders need not consent to the exact text of a proposed amendment
or waiver; it is sufficient if they consent to the substance thereof.
SECTION 10.03. Compliance with Trust Indenture Act.
Every amendment pursuant to Section 10.01 or 10.02 shall be set forth in a
supplemental indenture (except any amendment pursuant to Section 10.01(4), which
may be set forth in a Securities Resolution) that complies with the TIA.
If a provision of the TIA requires or permits a provision of this Indenture
and the TIA provision is amended, then the Indenture provision shall be
automatically amended to like effect.
SECTION 10.04. Effect of Consents.
An amendment or waiver becomes effective in accordance with its terms and
thereafter binds every Securityholder entitled to consent to it.
A consent to an amendment or waiver by a Holder of a Security is a
continuing consent by the Holder and every subsequent Holder of a Security that
evidences the same debt as the consenting Holder's Security. Any Holder or
subsequent Holder may revoke the consent as to his Security if the Trustee
receives notice of the revocation before the amendment or waiver becomes
effective.
The Company may fix a record date for the determination of Holders of
Registered Securities entitled to give a consent. The record date shall not be
less than 10 nor more than 60 days prior to the first written solicitation of
Securityholders.
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SECTION 10.05. Notation on or Exchange of Securities.
The Company or the Trustee may place an appropriate notation about an
amendment or waiver on any Security thereafter authenticated. The Company may
issue in exchange for affected Securities new Securities that reflect the
amendment or waiver.
SECTION 10.06. Trustee Protected.
The Trustee need not sign any supplemental indenture that adversely affects
its rights. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel and an Officers' Certificate
each stating that the execution of any amendment or supplement or waiver
authorized pursuant to this Article is authorized or permitted by this
Indenture, and that such amendment or supplement or waiver constitutes the
legal, valid and binding obligation of the Company.
ARTICLE 11 -- MISCELLANEOUS
SECTION 11.01. Trust Indenture Act.
The provisions of TIA ss.ss. 310 through 317 that impose duties on any
person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not expressly set forth herein.
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the required provision shall control. If any provision of this Indenture
modifies or excludes any provision of the TIA that may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or excluded, as the case may be.
SECTION 11.02. Notices.
Any notice by one party to another is duly given if in writing and
delivered in person, sent by facsimile transmission confirmed by mail or mailed
by first-class mail to the other's address shown below:
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Company:
Western Resources, Inc.
818 Kansas Avenue
Topeka, Kansas 66612
Fax: (913) 575-8160
Attention: Vice President -- Finance
Trustee:
Bankers Trust Company
4 Albany Street
4th Floor
New York, NY 10006
A party by notice to the other parties may designate additional or
different addresses for subsequent notices.
Any notice mailed to a Securityholder shall be mailed to his address shown
on the register kept by the Transfer Agent or on the list referred to in Section
2.06. Failure to mail a notice to a Securityholder or any defect in a notice
mailed to a Securityholder shall not affect the sufficiency of the notice mailed
to other Securityholders or the sufficiency of any published notice.
If a notice is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it.
If the Company mails a notice to Securityholders, it shall mail a copy to
the Trustee and each Agent at the same time.
If in the Company's opinion it is impractical to mail a notice required to
be mailed or to publish a notice required to be published, the Company may give
such substitute notice as the Trustee approves. Failure to publish a notice as
required or any defect in it shall not affect the sufficiency of any mailed
notice.
All notices shall be in the English language, except that any published
notice may be in an official language of the country of publication.
A "notice" includes any communication required by this Indenture.
-48-
SECTION 11.03. Certificate and Opinion as to Conditions
Precedent.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall if so requested furnish to the
Trustee:
(1) an Officers' Certificate stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
SECTION 11.04. Statements Required in Certificate or
Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether or not, in the opinion of such person, such
condition or covenant has been complied with.
SECTION 11.05. Rules by Company and Agents.
The Company may make reasonable rules for action by or a meeting of
Securityholders. An Agent may make reasonable rules and set reasonable
requirements for its functions.
-49-
SECTION 11.06. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions are not required to be open. If a payment date is a Legal Holiday
at a place of payment, unless the Securities Resolution establishing a series
otherwise provides with respect to Securities of the series, payment may be made
at that place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.
SECTION 11.07. No Recourse Against Others.
All liability described in the Securities of any director, officer,
employee or stockholder, as such, of the Company is waived and released.
SECTION 11.08. Duplicate Originals.
The parties may sign any number of copies of this Indenture. One signed
copy is enough to prove this Indenture.
SECTION 11.09. Governing Law.
The laws of the State of New York shall govern this Indenture, the
Securities and any coupons, unless federal law governs.
S-1
SIGNATURES
Dated: , WESTERN RESOURCES, INC.
By
--------------------------------
Name:
Title:
Attest: (SEAL)
- ------------------------
Name:
Title:
Dated: , BANKERS TRUST COMPANY
By
--------------------------------
Name:
Title:
Attest: (SEAL)
- -------------------------
Name:
Title:
EXHIBIT A
A Form of Registered Security
No. $
[NAME OF ISSUER]
[Title of Security]
[Name Of Issuer]
promises to pay to
or registered assigns
the principal sum of Dollars on ,
Interest Payment Dates:
Record Dates:
Dated:
[ ] [NAME OF ISSUER]
Transfer Agent and Paying Agent
by
(SEAL)
Authenticated: Chairman of the Board
[Name of Registrar]
Registrar, by
Authorized Signature Vice-President
A-1
[NAME OF ISSUER]
[Title of Security]
[Explanatory Notes follow Exhibit B]
1. Interest.(1)
[Name Of Issuer] ("Company"), a corporation organized and existing
under the laws of the State of ___________, promises to pay interest
on the principal amount of this Security at the rate per annum shown
above. The Company will pay interest on _________ and __________ of
each year commencing __________, 19__. Interest on the Securities will
accrue from the most recent date to which interest has been paid or,
if no interest has been paid, from __________, 19__. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment.(2)
The Company will pay interest on the Securities to the persons who are
registered holders of Securities at the close of business on the
record date for the next interest payment date, except as otherwise
provided in the Indenture. Holders must surrender Securities to a
Paying Agent to collect principal payments. The Company will pay
principal and interest in money of the United States that at the time
of payment is legal tender for payment of public and private debts.
The Company may pay principal and interest by check payable in such
money. It may mail an interest check to a holder's registered address.
3. Agents.
Initially, ____________ Attention: ___________, will act as Paying
Agent, Transfer Agent and Registrar. The Company may change any Paying
Agent, Transfer Agent or Registrar without notice or provide for more
than one such agent. The Company or any Affiliate may act in any such
capacity. Subject to certain conditions, the Company may change the
Trustee.
A-2
4. Indenture.
The Company issued the securities of this series ("Securities") under
an Indenture dated as of __________, _____ ("Indenture") between the
Company and Bankers Trust Company ("Trustee"). The terms of the
Securities include those stated in the Indenture and in the Securities
Resolution creating the Securities and those made part of the
Indenture by the Trust Indenture Act of 1939 (15 U.S. Code ss.ss.
77aaa-77bbbb), as amended. Securityholders are referred to the
Indenture, the Securities Resolution and the Act for a statement of
such terms.
5. Optional Redemption.(3)
On or after __________, the Company may redeem all the Securities at
any time or some of them from time to time at the following redemption
prices (expressed in percentages of principal amount), plus accrued
interest to the redemption date.
If redeemed during the 12-month period beginning,
Year Percentage Year Percentage
and thereafter at 100%.
6. Mandatory Redemption.(4)
The Company will redeem $__________ principal amount of Securities on
___________ and on each ___________ thereafter through __________ at a
redemption price of 100% of principal amount, plus accrued interest to
the redemption date.5 The Company may reduce the principal amount of
Securities to be redeemed pursuant to this paragraph by subtracting
100% of the principal amount (excluding premium) of any Securities (i)
that the Company has acquired or that the Company has redeemed other
than pursuant to this paragraph and (ii) that the Company has
delivered to the Registrar for cancellation. The Company may so
subtract the same Security only once.
On ___________ of each year commencing ___________ , the Trustee will,
upon the death of any registered owner, redeem any of the Securities
A-3
held by a registered owner following presentation thereof or
redemption as described below by such registered owner's personal
representative or surviving joint tenant(s), subject to the limitation
that in any ___ month period the Trustee shall not be obligated to
redeem Securities pursuant to this provision to the extent that the
aggregate principal amount of the Securities so subject to redemption
exceeds $__________, or the Securities of any registered owner
tendered for redemption are in excess of the aggregate ___________.
The Securities subject to redemption as described above may be
presented for redemption by delivering to the Trustee (i) a written
request for redemption in form satisfactory to the Trustee, signed by
the personal representative or surviving joint tenant(s) of the
registered owner, (ii) the Securities to be redeemed, (iii)
appropriate evidence of death and ownership of such Securities at the
time of death, and (iv) appropriate evidence of the authority of such
personal representative or surviving joint tenant(s). In order for
Securities to be eligible for redemption on any __________, such
Securities must be presented for redemption in full compliance with
the provisions set forth above, prior to __________ following the
death of the registered owner of such Securities and next preceding
such __________. Securities presented for redemption prior to maturity
will be redeemed in order of their receipt by the Trustee. Any such
Securities not redeemed in any such period because of the aggregate
__________ limitation or the individual $___________ limitation will
be held in the order described above for redemption on ___________ in
succeeding years until redeemed. Any such redemption shall be at a
price equal to _____% of the principal amount of the Securities so to
be redeemed, plus accrued interest to the redemption date, but without
a premium.
The death of a person who, during his lifetime, was entitled to
substantially all of the beneficial interest of ownership of a
Security will be deemed the death of a registered owner, regardless of
the registered owner, if such beneficial interest can be established
to the satisfaction of the Trustee. Such beneficial interest shall be
deemed to exist in typical cases of street name or nominee ownership,
owner-
A-4
ship under the Uniform Transfers to Minors Act or similar statute,
community property or other joint ownership arrangements between
husband and wife, and trust and certain other arrangements where one
person has substantially all of the beneficial ownership interest in
the Securities during his lifetime. In the case of Securities
registered in the name of banks, trust companies or broker-dealers who
are members of a national securities exchange or the National
Association of Securities Dealers, Inc. ("Qualified Institutions"),
the redemption limitations described above apply to each beneficial
owner of Securities held by any Qualified Institution. In connection
with the redemption request, such Qualified Institution must submit
evidence, satisfactory to the Trustee, that it holds Securities
subject to request on behalf of such beneficial owner and must certify
the aggregate amount of redemption requests made on behalf of such
beneficial owner.
7. Additional Optional Redemption.(6)
In addition to redemptions pursuant to the above paragraph(s), the
Company may redeem not more than $_________ principal amount of
Securities on __________ and on each __________ thereafter through
__________ at a redemption price of 100% of principal amount, plus
accrued interest to the redemption date.
8. Notice of Redemption.(7)
Notice of redemption will be mailed at least 30 days before the
redemption date to each holder of Securities to be redeemed at his
registered address.
A notice of redemption may provide that it is subject to the
occurrence of any event before the date fixed for such redemption as
described in such notice ("Conditional Redemption") and such notice of
Conditional Redemption shall be of no effect unless all such
conditions to the redemption have occurred before such date or have
been waived by the Company.
A-5
9. Conversion.(8)
A Holder of a Security may convert it into Common Stock of the Company
or cash, or a combination thereof, at the Company's option, at any
time before the close of business on ___________, or, if the Security
is called for redemption, the Holder may convert it at any time before
the close of business on the redemption date. The initial Conversion
Rate is ____________ (or an equivalent amount in cash) per $1,000
principal amount of the Securities, subject to adjustment as provided
in Article 9 of the Indenture.9 The Company will deliver a check in
lieu of any fractional share. On conversion no payment or adjustment
for interest accrued on the Securities will be made nor for dividends
on the Common Stock issued on conversion. If any Security is converted
between the record date for the payment of interest and the next
succeeding interest payment date, such Security must be accompanied by
funds equal to the interest payable on such succeeding interest
payment date on the principal amount so converted (unless such
Security shall have been called for redemption, in which case no such
payment shall be required). A Security converted on an interest
payment date need not be accompanied by any payment, and the interest
on the principal amount of the Security being converted will be paid
on such interest payment date to the registered holder of such
Security on the immediately preceding record date.
To convert a Security a Holder must (1) complete and sign the
conversion notice on the back of the Security, (2) surrender the
Security to a Conversion Agent, (3) furnish appropriate endorsements
and transfer documents if required by the Registrar or Conversion
Agent and (4) pay any transfer or similar tax if required. A Holder
may convert a portion of a Security if the portion is $1,000 or an
integral multiple of $1,000.
10. Denominations, Transfer, Exchange.
The Securities are in registered form without coupons in denominations
of $1,00010 and whole multiples of $1,000. The transfer of Securities
may be registered and Securities may be exchanged as provided in the
A-6
Indenture. The Transfer Agent may require a holder, among other
things, to furnish appropriate endorsements and transfer documents and
to pay any taxes and fees required by law or the Indenture. The
Transfer Agent need not exchange or register the transfer of any
Security or portion of a Security selected for redemption. Also, it
need not exchange or register the transfer of any Securities for a
period of 15 days before a selection of Securities to be redeemed.
11. Persons Deemed Owners.
The registered holder of a Security may be treated as its owner for
all purposes.
12. Amendments and Waivers.
Subject to certain exceptions, the Indenture or the Securities may be
amended with the consent of the holders of a majority in principal
amount of the securities of all series affected by the amendment.11
Subject to certain exceptions, a default on a series may be waived
with the consent of the holders of a majority in principal amount of
the series.
Without the consent of any Securityholder, the Indenture or the
Securities may be amended, among other things, to cure any ambiguity,
omission, defect or inconsistency; to provide for assumption of
Company obligations to Securityholders; or to make any change that
does not materially adversely affect the rights of any Securityholder.
13. Restrictive Covenants.(12)
The Securities are unsecured general obligations of the Company
limited to $__________ principal amount. The Indenture does not limit
other unsecured debt.
14. Successors.
When a successor assumes all the obligations of the Company under the
Securities and the Indenture, the Company will be released from those
obligations.
A-7
15. Defeasance Prior to Redemption or Maturity.(13)
Subject to certain conditions, the Company at any time may terminate
some or all of its obligations under the Securities and the Indenture
if the Company deposits with the Trustee money or U.S. Government
Obligations for the payment of principal and interest on the
Securities to redemption or maturity. U.S. Government Obligations are
securities backed by the full faith and credit of the United States of
America or certificates representing an ownership interest in such
Obligations.
16. Defaults and Remedies.
An Event of Default(14) includes: default for 60 days in payment of
interest on the Securities; default in payment of principal on the
Securities; default for 60 days in payment or satisfaction of any
sinking fund obligation; default by the Company for a specified period
after notice to it in the performance of any of its other agreements
applicable to the Securities; certain events of bankruptcy or
insolvency; and any other Event of Default provided for in the series.
If an Event of Default occurs and is continuing, the Trustee or the
holders of at least 33-1/3% in principal amount of the Securities may
declare the principal15 of all the Securities to be due and payable
immediately. Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may
require indemnity satisfactory to it before it enforces the Indenture
or the Securities. Subject to certain limitations, holders of a
majority in principal amount of the Securities may direct the Trustee
in its exercise of any trust or power. The Trustee may withhold from
Securityholders notice of any continuing default (except a default in
payment of principal or interest) if it determines that withholding
notice is in their interests. The Company must furnish an annual
compliance certificate to the Trustee.
17. Trustee Dealings with Company.
Bankers Trust Company, the Trustee under the Indenture, in its
individual or any other capacity, may make loans to, accept deposits
from, and perform services
A-8
for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not Trustee.
18. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under
the Securities or the Indenture or for any claim based on, in respect
of or by reason of such obligations or their creation. Each
Securityholder by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for
the issue of the Securities.
19. Authentication.
This Security shall not be valid until authenticated by a manual
signature of the Registrar.
20. Abbreviations.
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as: TEN COM (=tenants in common), TEN ENT (=tenants
by the entirety), JT TEN (=joint tenants with right of survivorship
and not as tenants in common), CUST (=custodian), and U/G/M/A
(=Uniform Gifts to Minors Act).
The Company will furnish to any Securityholder upon written request and
without charge a copy of the Indenture and the Securities Resolution, which
contain the text of this Security in larger type. Requests may be made to:
[Name/Address Of Issuer], Attention: Corporate Secretary.
A-9
EXHIBIT B
A Form of Bearer Security
No. $
[NAME OF ISSUER]
[Title of Security]
[Explanatory Notes follow ]
[Name Of Issuer]
promises to pay to bearer
the principal sum of Dollars on ,
Interest Payment Dates:
Dated:
[ ] [NAME OF ISSUER]
Transfer Agent
(SEAL) by
Authenticated: Chairman of the Board
[Name of Registrar]
Registrar, by
Authorized Signature Vice-President
B-1
[NAME OF ISSUER]
[Title of Security]
1. Interest.(1)
[Name Of Issuer] ("Company"), a corporation organized and existing
under the laws of the State of __________, promises to pay to bearer
interest on the principal amount of this Security at the rate per
annum shown above. The Company will pay interest on __________ and
__________ of each year commencing __________, 19__. Interest on the
Securities will accrue from the most recent date to which interest has
been paid or, if no interest has been paid, from __________, 19__.
Interest will be computed on the basis of a 360-day year of twelve
30-day months.
2. Method of Payment.(2)
Holders must surrender Securities and any coupons to a Paying Agent to
collect principal and interest payments. The Company will pay
principal and interest in money of the United States that at the time
of payment is legal tender for payment of public and private debts.
The Company may pay principal and interest by check payable in such
money.
3. Agents.
Initially, __________ , Attention: ___________, will act as Transfer
Agent, Paying Agent and Registrar. The Company may change any Paying
Agent, Transfer Agent or Registrar without notice or provide for more
than one such agent. The Company or any Affiliate may act in any such
capacity. Subject to certain conditions, the Company may change the
Trustee.
4. Indenture.
The Company issued the securities of this series __________
("Securities") under an Indenture dated as of __________ , _________
("Indenture") between the Company and Bankers Trust Company
("Trustee"). The terms of the Securities include those stated in the
Indenture and the Securities Resolution and those made part of the
Indenture
B-2
by the Trust Indenture Act of 1939 (15 U.S. Code ss.ss. 77aaa-77bbbb),
as amended. Securityholders are referred to the Indenture, the
Securities Resolution and the Act for a statement of such terms.
5. Optional Redemption.(3)
On or after __________, the Company may redeem all the Securities at
any time or some of them from time to time at the following redemption
prices (expressed in percentages of principal amount), plus accrued
interest to the redemption date.
If redeemed during the 12-month period beginning,
Year Percentage Year Percentage
and thereafter 100%.
6. Mandatory Redemption.(4)
The Company will redeem $__________ principal amount of Securities on
___________ and on each __________ thereafter through __________ at a
redemption price of 100% of principal amount, plus accrued interest to
the redemption date.(5) The Company may reduce the principal amount of
Securities to be redeemed pursuant to this paragraph by subtracting
100% of the principal amount (excluding premium) of any Securities (i)
that the Company has acquired or that the Company has redeemed other
than pursuant to this paragraph and (ii) that the Company has
delivered to the Registrar for cancellation. The Company may so
subtract the same Security only once.
On __________ of each year commencing __________, the Trustee will,
upon the death of any registered owner, redeem any of the Securities
held by a registered owner following presentation thereof or
redemption as described below by such registered owner's personal
representative or surviving joint tenant(s), subject to the limitation
that in any ____ month period the Trustee shall not be obligated to
redeem Securities pursuant to this provision to the extent that the
aggregate principal amount of the Securities so subject to redemption
exceeds $___________, or the Securities of any registered
B-3
owner tendered for redemption are in excess of the aggregate
___________. The Securities subject to redemption as described above
may be presented for redemption by delivering to the Trustee (i) a
written request for redemption in form satisfactory to the Trustee,
signed by the personal representative or surviving joint tenant(s) of
the registered owner, (ii) the Securities to be redeemed, (iii)
appropriate evidence of death and ownership of such Securities at the
time of death, and (iv) appropriate evidence of the authority of such
personal representative or surviving joint tenant(s). In order for
Securities to be eligible for redemption on any ___________, such
Securities must be presented for redemption in full compliance with
the provisions set forth above, prior to __________ following the
death of the registered owner of such Securities and next preceding
such __________. Securities presented for redemption prior to maturity
will be redeemed in order of their receipt by the Trustee. Any such
Securities not redeemed in any such period because of the aggregate
__________ limitation or the individual $__________ limitation will be
held in the order described above for redemption on __________ in
succeeding years until redeemed. Any such redemption shall be at a
price equal to ____% of the principal amount of the Securities so to
be redeemed, plus accrued interest to the redemption date, but without
a premium.
The death of a person who, during his lifetime, was entitled to
substantially all of the beneficial interest of ownership of a
Security will be deemed the death of a registered owner, regardless of
the registered owner, if such beneficial interest can be established
to the satisfaction of the Trustee. Such beneficial interest shall be
deemed to exist in typical cases of street name or nominee ownership,
ownership under the Uniform Transfers to Minors Act or similar
statute, community property or other joint ownership arrangements
between husband and wife, and trust and certain other arrangements
where one person has substantially all of the beneficial ownership
interest in the Securities during his lifetime. In the case of
Securities registered in the name of banks, trust companies or
broker-dealers who are members of a national securities exchange or
the National Asso-
B-4
ciation of Securities Dealers, Inc. ("Qualified Institutions"), the
redemption limitations described above apply to each beneficial owner
of Securities held by any Qualified Institution. In connection with
the redemption request, such Qualified Institution must submit
evidence, satisfactory to the Trustee, that it holds Securities
subject to request on behalf of such beneficial owner and must certify
the aggregate amount of redemption requests made on behalf of such
beneficial owner.
7. Additional Optional Redemption.(6)
In addition to redemptions pursuant to the above paragraph(s), the
Company may redeem not more than $__________ principal amount of
Securities on __________ and on each ___________ thereafter through
___________ at a redemption price of 100% of principal amount, plus
accrued interest to the redemption date.
8. Notice of Redemption.(7)
Notice of redemption will be published once in an Authorized Newspaper
in the City of New York and if the Securities are listed on any stock
exchange located outside the United States and such stock exchange so
requires, in any other required city outside the United States at
least 30 days before the redemption date. Notice of redemption also
will be mailed to holders who have filed their names and addresses
with the Transfer Agent within the two preceding years. A holder of
Securities may miss important notices if he fails to maintain his name
and address with the Transfer Agent.
A notice of redemption may provide that it is subject to the
occurrence of any event before the date fixed for such redemption as
described in such notice ("Conditional Redemption") and such notice of
Conditional Redemption shall be of no effect unless all such
conditions to the redemption have occurred before such date or have
been waived by the Company.
9. Conversion.(8)
A Holder of a Security may convert it into Common Stock of the Company
or cash, or a combination
B-5
thereof, at the Company's option, at any time before the close of
business on ___________, or, if the Security is called for redemption,
the Holder may convert it at any time before the close of business on
the redemption date. The initial Conversion Rate is ____________ (or
an equivalent amount in cash) per $1,000 principal amount of the
Securities, subject to adjustment as provided in Article 9 of the
Indenture.(9) The Company will deliver a check in lieu of any
fractional share. On conversion no payment or adjustment for interest
accrued on the Securities will be made nor for dividends on the Common
Stock issued on conversion. If any Security is converted between the
record date for the payment of interest and the next succeeding
interest payment date, such Security must be accompanied by funds
equal to the interest payable on such succeeding interest payment date
on the principal amount so converted (unless such Security shall have
been called for redemption, in which case no such payment shall be
required). A Security converted on an interest payment date need not
be accompanied by any payment, and the interest on the principal
amount of the Security being converted will be paid on such interest
payment date to the registered holder of such Security on the
immediately preceding record date.
To convert a Security a Holder must (1) complete and sign the
conversion notice on the back of the Security, (2) surrender the
Security to a Conversion Agent, (3) furnish appropriate endorsements
and transfer documents if required by the Registrar or Conversion
Agent and (4) pay any transfer or similar tax if required. A Holder
may convert a portion of a Security if the portion is $1,000 or an
integral multiple of $1,000.
10. Denominations, Transfer, Exchange.
The Securities are in bearer form with coupons in denominations of
$5,000(10) and whole multiples of $5,000. The Securities may be
transferred by delivery and exchanged as provided in the Indenture.
Upon an exchange, the Transfer Agent may require a holder, among other
things, to furnish appropriate documents and to pay any taxes and fees
required by law or the Indenture. The Transfer Agent need not exchange
any
B-6
Security or portion of a Security selected for redemption. Also, it
need not exchange any Securities for a period of 15 days before a
selection of Securities to be redeemed.
11. Persons Deemed Owners.
The holder of a Security or coupon may be treated as its owner for all
purposes.
12. Amendments and Waivers.
Subject to certain exceptions, the Indenture or the Securities may be
amended with the consent of the holders of a majority in principal
amount of the securities of all series affected by the amendment.(11)
Subject to certain exceptions, a default on a series may be waived
with the consent of the holders of a majority in principal amount of
the series.
Without the consent of any Securityholder, the Indenture or the
Securities may be amended, among other things, to cure any ambiguity,
omission, defect or inconsistency; to provide for assumption of
Company obligations to Securityholders; or to make any change that
does not materially adversely affect the rights of any Securityholder.
13. Restrictive Covenants.(12)
The Securities are unsecured general obligations of the Company
limited to $__________ principal amount. The Indenture does not limit
other unsecured debt.
14. Successors.
When a successor assumes all the obligations of the Company under the
Securities, any coupons and the Indenture, the Company will be
released from those obligations.
15. Defeasance Prior to Redemption or Maturity.(13)
Subject to certain conditions, the Company at any time may terminate
some or all of its obligations under the Securities, any coupons and
the Indenture if the Company deposits with the Trustee money or U.S.
B-7
Government Obligations for the payment of principal and interest on
the Securities to redemption or maturity. U.S. Government Obligations
are securities backed by the full faith and credit of the United
States of America or certificates representing an ownership interest
in such Obligations.
16. Defaults and Remedies.
An Event of Default(14) includes: default for 60 days in payment of
interest on the Securities; default in payment of principal on the
Securities; default for 60 days in payment or satisfaction of any
sinking fund obligation; default by the Company for a specified period
after notice to it in the performance of any of its other agreements
applicable to the Securities; certain events of bankruptcy or
insolvency; and any other Event of Default provided for in the series.
If an Event of Default occurs and is continuing, the Trustee or the
holders of at least 33-1/3% in principal amount of the Securities may
declare the principal(15) of all the Securities to be due and payable
immediately.
Securityholders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the Securities.
Subject to certain limitations, holders of a majority in principal
amount of the Securities may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Securityholders notice
of any continuing default (except a default in payment of principal or
interest) if it determines that withholding notice is in their
interests. The Company must furnish annual compliance certificates to
the Trustee.
17. Trustee Dealings with Company.
Bankers Trust Company, the Trustee under the Indenture, in its
individual or any other capacity, may make loans to, accept deposits
from, and perform services for the Company or its Affiliates, and may
otherwise deal with the Company or its Affiliates, as if it were not
Trustee.
B-8
18. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under
the Securities or the Indenture or for any claim based on, in respect
of or by reason of such obligations or their creation. Each
Securityholder by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for
the issue of the Securities.
19. Authentication.
This Security shall not be valid until authenticated by a manual
signature of the Registrar.
20. Abbreviations.
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as: TEN COM (=tenants in common), TEN ENT (=tenants
by the entirety), JT TEN (=joint tenants with right of survivorship
and not as tenants in common), CUST (=custodian), and U/G/M/A
(=Uniform Gifts to Minors Act).
The Company will furnish to any Securityholder upon written request and
without charge a copy of the Indenture and the Securities Resolution, which
contain the text of this Security in larger type. Requests may be made to:
[Name/Address Of Issuer], Attention: Corporate Secretary.
B-9
[FACE OF COUPON]
...............
[$]............
Due............
[NAME OF ISSUER]
[Title of Security]
Unless the Security attached to this coupon has been called for redemption,
[Name Of Issuer] (the "Company") will pay to bearer, upon surrender, the amount
shown hereon when due. This coupon may be surrendered for payment to any Paying
Agent listed on the back of this coupon unless the Company has replaced such
Agent. Payment may be made by check. This coupon represents months' interest.
[Name Of Issuer]
By
-----------------------------------
[REVERSE OF COUPON]
PAYING AGENTS
B-10
NOTES TO EXHIBITS A AND B
1 If the Security is not to bear interest at a fixed rate per annum, insert a
description of the manner in which the rate of interest is to be
determined. If the Security is not to bear interest prior to maturity, so
state.
2 If the method or currency of payment is different, insert a statement
thereof.
3 If applicable. A restriction on redemption or refunding or any provision
applicable to its redemption other may be added.
4 Such provisions as are applicable, if any.
5 If the Security is a Discounted Debt Security, insert amount to be redeemed
or method of calculating such amount.
6 If applicable. Also insert, if applicable, provisions for repayment of
Securities at the option of the Securityholder.
7 If applicable.
8 If applicable. If convertible into securities other than Common Stock,
insert appropriate summary.
9 If additional or different adjustment provisions apply so specify.
10 If applicable. Insert additional or different denominations and terms as
appropriate.
11 If different terms apply, insert a brief summary thereof.
12 If applicable. If additional or different covenants apply, insert a brief
summary thereof.
13 If applicable. If different defeasance terms apply, insert a brief summary
thereof.
14 If additional or different Events of Default apply, insert a brief summary
thereof.
1
15 If the Security is a Discounted Debt Security, set forth the amount due and
payable upon an Event of Default.
Note: U.S. tax law may require certain legends on Discounted Debt and Bearer
Securities.
2
EXHIBIT C
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
-----------------------------------------
: :
:----------------------------------------:
(Insert assignee's soc. sec. or tax I.D. no.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ____________________________ agent to transfer this
Security on the books of the Company. The agent may substitute another to act
for him.
Date: _______________ Your Signature:________________________
________________________
(Sign exactly as your name appears on the other side of this Security)
C-1
EXHIBIT D
CONVERSION NOTICE
To convert this Security, check the box:
-----------
-----------
To convert only part of this Security, state the
amount (must be in integral multiples of $1,000);
$_______________________________________________
If you want the securities delivered upon
conversion made out in another person's name, fill
in the form below:
(Insert other person's Social Security or Tax I.D. Number)
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
(Print or type other person's name, address and zip code)
Date: _________ Signature(s): ____________________________
____________________________
(Sign exactly as your name(s)
appear(s) on the other side
of this Security)
D-1
Signature(s) guaranteed by: ________________________________
(All signatures must be
guaranteed by a member of a
national securities exchange or
of the National Association of
Securities Dealers, Inc. or by a
commercial bank or trust company
located in the United States)
D-2
Exhibit 4(b)
SECURITIES RESOLUTION NO.
OF
WESTERN RESOURCES, INC.
I, _____________, Corporate Secretary of Western Resources, Inc. (the
"Company"), do hereby certify that the attached is a true and correct copy of
Securities Resolution No. ______ duly adopted by the authorized officers of the
Company pursuant to authorization delegated to them by the Board of Directors of
the Company at a meeting called and held on ___________; and I do further
certify that said resolution has not been rescinded and remains in full force
and effect.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the corporate
seal to WESTERN RESOURCES, INC. this ______ day __________ of ______________.
By:_____________________________________
Secretary
[CORPORATE SEAL]
% Senior Notes Due
SECURITIES RESOLUTION NO.
OF
WESTERN RESOURCES, INC.
The actions described below are taken by the duly authorized officers of
WESTERN RESOURCES, INC. (the "Company"), pursuant to delegation, in accordance
with resolutions adopted by the Board of Directors of the Company on , and
Section 2.01 of the Indenture dated __________, ____ (the "Indenture") between
the Company and Bankers Trust Company, as Trustee. Terms used herein and not
defined have the same meaning given such terms in the Indenture.
RESOLVED, that a new series of Securities is authorized as follows:
1. The title of the series is _____% Senior Notes Due ___________ (the
"Notes").
2. The form of the Notes shall be substantially in form of Annex 1
hereto.
3. The Notes shall have the terms set forth in Annex 1.
This Securities Resolution shall be effective as of ____________.
-----------------------
Name:
Title:
-----------------------
Name:
Title:
Exhibit 5
July 22, 1998
Western Resources, Inc.
818 Kansas Avenue
Topeka, Kansas 66612
Ladies and Gentlemen:
As Vice President, Law and Corporate Secretary of Western Resources, Inc.
(the "Company"), and in connection with the proposed issue and sale, from time
to time, of $800,000,000 aggregate principal amount of Debt Securities (the
"Debt Securities") with respect to which the Company is filing a Registration
Statement on Form S-3 (the "Registration Statement") with the Securities and
Exchange Commission under the Securities Act of 1933, to which Registration
Statement this opinion shall be filed as an exhibit (capitalized terms used
herein without definition have the meanings given such terms in the Registration
Statement), I advise you that, in my opinion:
1. The Company is a corporation duly organized and validly existing under
the laws of the State of Kansas.
2. The Debt Securities are to be issued under an indenture (hereinafter
called the "Indenture") which may hereafter be supplemented by one or more
supplemental indentures or Securities Resolutions (as defined in the Indenture)
creating the Debt Securities (forms of which are filed as exhibits to the
Registration Statement).
3. Upon (a) authorization of the issue and sale of the Debt Securities by
state regulatory commissions having jurisdiction, (b) the Registration Statement
becoming effective under the Securities Act of 1933, (c) the authorization by
the Company of a supplement to the Indenture and/or the issuance, sale and
delivery of the Debt Securities pursuant to a Securities Resolution, (d)
authorization by resolutions of the Board of Directors of the Company, or the
proper officers of the Company duly authorized, and receipt by the Company of
sufficient consideration for the issuance, sale and delivery of such Debt
Securities, and (e) the execution of the Debt Securities by the proper officers
of the Company and the authentication thereof by the Trustee, the Debt
Securities will be duly authorized and issued and will constitute the legal,
-2-
valid and binding obligations of the Company entitled to the benefits provided
by the Indenture and any supplements thereto.
I hereby consent to the filing of a copy of this opinion as an exhibit to
said Registration Statement. I also consent to the use of my name and the making
of the statements with respect to myself in the Registration Statement and the
Prospectus constituting a part thereof.
Very truly yours,
/s/ Richard D. Terrill
-------------------------------
Name: Richard D. Terrill
Title: Vice President, Law
Exhibit 23(b)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use and
incorporation by reference of our reports and to all references to our Firm
included in or made part of this Registration Statement on Form S-3.
/s/ Arthur Andersen LLP
Kansas City, Missouri,
July 22, 1998
Exhibit 23(c)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
Western Resources, Inc. (the Company) on Form S-3 of our report dated January
30, 1998, on our audits of the consolidated financial statements of Kansas City
Power & Light Company and Subsidiary as of December 31, 1997 and 1996, and for
the years ended December 31, 1997, 1996 and 1995, which report is included in
Kansas City Power & Light Company and Subsidiary's Annual Report on Form 10-K,
an exhibit in the Company's July 13, 1998 Current Report on Form 8-K. We Also
consent to the reference to our firm under the caption "Experts."
/s/ Pricewaterhouse Coopers LLP
-------------------------------
Pricewaterhouse Coopers LLP
Kansas City, Missouri
July 22, 1998
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2) ___________
------------------------------
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
Bankers Trust Company
Legal Department
130 Liberty Street, 31st Floor
New York, New York 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
---------------------------------
WESTERN RESOURCES, INC.
(Exact name of obligor as specified in its charter)
KANSAS 48-0290150
(State or other jurisdiction of (I.R.S. Employer Identification no.)
Incorporation or organization)
818 KANSAS AVENUE
TOPEKA, KANSAS 66612
(Address of principal executive offices)
DEBT SECURITIES
(Title of the indenture securities)
Item 1. General Information.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising authority to which
it is subject.
Name Address
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each such
affiliation.
None.
Item 3. -15. Not Applicable
Item 16. List of Exhibits.
Exhibit 1 - Restated Organization Certificate of Bankers Trust Company
dated August 7, 1990, Certificate of Amendment of the
Organization Certificate of Bankers Trust Company dated June
21, 1995 - Incorporated herein by reference to Exhibit 1 filed
with Form T-1 Statement, Registration No. 33-65171, Certificate
of Amendment of the Organization Certificate of Bankers Trust
Company dated March 20, 1996, incorporate by referenced to
Exhibit 1 filed with Form T-1 Statement, Registration No.
333-25843 and Certificate of Amendment of the Organization
Certificate of Bankers Trust Company dated June 19, 1997, copy
attached.
Exhibit 2 - Certificate of Authority to commence
business - Incorporated herein by reference to Exhibit 2 filed
with Form T-1 Statement, Registration No. 33-21047.
Exhibit 3 - Authorization of the Trustee to exercise
corporate trust powers Incorporated herein by reference to
Exhibit 2 filed with Form T-1 Statement, Registration No.
33-21047.
Exhibit 4 - Existing By-Laws of Bankers Trust
Company, as amended on November 18, 1997. Copy attached.
-2-
Exhibit 5 - Not applicable.
Exhibit 6 - Consent of Bankers Trust Company
required by Section 321(b) of the Act. Incorporated herein by
reference to Exhibit 4 filed with Form T-1 Statement,
Registration No. 22-18864.
Exhibit 7 - The latest report of condition of
Bankers Trust Company dated as of December 31, 1997. Copy
attached.
Exhibit 8 - Not Applicable.
Exhibit 9 - Not Applicable.
-3-
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on the 22nd day
of July, 1998.
BANKERS TRUST COMPANY
By: /s/ Scott Thiel
------------------------------------
Scott Thiel
Assistant Vice President
-4-
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New York,
DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF AMENDMENT OF
THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section 8005 of the
Banking Law," dated June 19, 1997, providing for an increase in authorized
capital stock from $1,601,666,670 consisting of 100,166,667 shares with a par
value of $10 each designated as Common Stock and 600 shares with a par value of
$1,000,000 each designated as Series Preferred Stock to $2,001,666,670
consisting of 100,166,667 shares with a par value of $10 each designated as
Common Stock and 1,000 shares with a par value of $1,000,000 each designated as
Series Preferred Stock.
Witness, my hand and official seal of the Banking Department at the City
of New York, this 27th day of June in the Year of our Lord one
thousand nine hundred and ninety-seven.
/s/ Manuel Kursky
-------------------------------
Deputy Superintendent of Banks
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
-----------------------------
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and an Assistant Secretary of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of march, 1903.
3. The organization certificate as heretofore amended is hereby amended to
increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock in
conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is One Billion, Six Hundred and One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($1,601,666,670), divided into
One Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred
Sixty-Seven (100,166,667) shares with a par value of $10 each
designated as Common Stock and 600 shares with a par value of One
Million Dollars ($1,000,000) each designated as Series Preferred
Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is Two Billion One Million, Six Hundred Sixty-Six Thousand, Six
Hundred Seventy Dollars ($2,001,666,670), divided into One Hundred
Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(100,166,667) shares with a par value of $10 each designated as Common
Stock and 1000 shares with a par value of One Million Dollars
($1,000,000) each designated as Series Preferred Stock."
5. The foregoing amendment of the organization certificate was authorized
by unanimous written consent signed by the holder of all outstanding shares
entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 19th
day of June, 1997.
/s/ James T. Byrne, Jr.
---------------------------------
James T. Byrne, Jr.
Managing Director
/s/ Lea Lahtinen
---------------------------------
Lea Lahtinen
Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is an Assistant
Secretary of Bankers Trust Company, the corporation described in the foregoing
certificate; that she has read the foregoing certificate and knows the contents
thereof, and that the statements herein contained are true.
/s/ Lea Lahtinen
---------------------------------
Lea Lahtinen
Sworn to before me this 19th day
of June, 1997.
/s/ Sandra L. West
- -----------------------------------
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 1998
BY-LAWS
NOVEMBER 18, 1997
Bankers Trust Company
New York
BY-LAWS
of
Bankers Trust Company
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. The annual meeting of the stockholders of this Company shall be held
at the office of the Company in the Borough of Manhattan, City of New York, on
the third Tuesday in January of each year, for the election of directors and
such other business as may properly come before said meeting.
SECTION 2. Special meetings of stockholders other than those regulated by
statute may be called at any time by a majority of the directors. It shall be
the duty of the Chairman of the Board, the Chief Executive Officer or the
President to call such meetings whenever requested in writing to do so by
stockholders owning a majority of the capital stock.
SECTION 3. At all meetings of stockholders, there shall be present, either in
person or by proxy, stockholders owning a majority of the capital stock of the
Company, in order to constitute a quorum, except at special elections of
directors, as provided by law, but less than a quorum shall have power to
adjourn any meeting.
SECTION 4. The Chairman of the Board or, in his absence, the Chief Executive
Officer or, in his absence, the President or, in their absence, the senior
officer present, shall preside at meetings of the stockholders and shall direct
the proceedings and the order of business. The Secretary shall act as secretary
of such meetings and record the proceedings.
ARTICLE II
DIRECTORS
SECTION 1. The affairs of the Company shall be managed and its corporate powers
exercised by a Board of Directors consisting of such number of directors, but
not less than ten nor more than twenty-five, as may from time to time be fixed
by resolution adopted by a majority of the directors then in office, or by the
stockholders. In the event of any increase in the number of directors,
additional directors may be elected within the limitations so fixed, either by
the stockholders or within the limitations imposed by law, by a majority of
directors then in office. One-third of the number of directors, as fixed from
time to time, shall constitute a quorum. Any one or more members of the Board of
Directors or any Committee thereof may participate in a meeting of the Board of
Directors or Committee thereof by means of a conference telephone or similar
communications equipment which allows all persons participating in the meeting
to hear each other at the same time. Participation by such means shall
constitute presence in person at such a meeting.
All directors hereafter elected shall hold office until the next annual meeting
of the stockholders and until their successors are elected and have qualified.
No person who shall have attained age 72 shall be eligible to be elected or
re-elected a director. Such director may, however, remain a director of the
Company until the next annual meeting of the stockholders of Bankers Trust New
York Corporation (the Company's parent) so that such director's retirement will
coincide with the retirement date from Bankers Trust New York Corporation.
No Officer-Director who shall have attained age 65, or earlier relinquishes his
responsibilities and title, shall be eligible to serve as a director.
SECTION 2. Vacancies not exceeding one-third of the whole number of the Board of
Directors may be filled by the affirmative vote of a majority of the directors
then in office, and the directors so elected shall hold office for the balance
of the unexpired term.
SECTION 3. The Chairman of the Board shall preside at meetings of the Board of
Directors. In his absence, the Chief Executive Officer or, in his absence, such
other director as the Board of Directors from time to time may designate shall
preside at such meetings.
SECTION 4. The Board of Directors may adopt such Rules and Regulations for the
conduct of its meetings and the management of the affairs of the Company as it
may deem proper, not inconsistent with the laws of the State of New York, or
these By-Laws, and all officers and employees shall strictly adhere to, and be
bound by, such Rules and Regulations.
SECTION 5. Regular meetings of the Board of Directors shall be held from time to
time on the third Tuesday of the month. If the day appointed for holding such
regular meetings shall be a legal holiday, the regular meeting to be held on
such day shall be held on the next business day thereafter. Special meetings of
the Board of Directors may be called upon at least two day's notice whenever it
may be deemed proper by the Chairman of the Board or, the Chief Executive
Officer or, in their absence, by such other director as the Board of Directors
may have designated pursuant to Section 3 of this Article, and shall be called
upon like notice whenever any three of the directors so request in writing.
SECTION 6. The compensation of directors as such or as members of committees
shall be fixed from time to time by resolution of the Board of Directors.
ARTICLE III
COMMITTEES
SECTION 1. There shall be an Executive Committee of the Board consisting of not
less than five directors who shall be appointed annually by the Board of
Directors. The Chairman of the Board shall preside at meetings of the Executive
Committee. In his absence, the Chief Executive Officer or, in his absence, such
other member of the Committee as the Committee from time to time may designate
shall preside at such meetings.
The Executive Committee shall possess and exercise to the extent permitted by
law all of the powers of the Board of Directors, except when the latter is in
session, and shall keep minutes of its proceedings, which shall be presented to
the Board of Directors at its next subsequent meeting. All acts done and powers
and authority conferred by the Executive Committee from time to time shall be
and be deemed to be, and may be certified as being, the act and under the
authority of the Board of Directors.
A majority of the Committee shall constitute a quorum, but the Committee may act
only by the concurrent vote of not less than one-third of its members, at least
one of whom must be a director other than an officer. Any one or more directors,
even though not members of the Executive Committee, may attend any meeting of
the Committee, and the member or members of the Committee present, even though
less than a quorum, may designate any one or more of such directors as a
substitute or substitutes for any absent member or members of the Committee, and
each such substitute or substitutes shall be counted for quorum, voting, and all
other purposes as a member or members of the Committee.
SECTION 2. There shall be an Audit Committee appointed annually by resolution
adopted by a majority of the entire Board of Directors which shall consist of
such number of directors, who are not also officers of the Company, as may from
time to time be fixed by resolution adopted by the Board of Directors. The
Chairman shall be designated by the Board of Directors, who shall also from time
to time fix a quorum for meetings of the Committee. Such Committee shall conduct
the annual directors' examinations of the Company as required by the New York
State Banking Law; shall review the reports of all examinations made of the
Company by public authorities and report thereon to the Board of Directors; and
shall report to the Board of Directors such other matters as it deems advisable
with respect to the Company, its various departments and the conduct of its
operations.
In the performance of its duties, the Audit Committee may employ or retain, from
time to time, expert assistants, independent of the officers or personnel of the
Company, to make studies of the Company's assets and liabilities as the
Committee may request and to make an examination of the accounting and auditing
methods of the Company and its system of internal protective controls to the
extent considered necessary or advisable in order to determine that the
operations of the Company, including its fiduciary departments, are being
audited by the General Auditor in such a manner as to provide prudent and
adequate protection. The Committee also may direct the General Auditor to make
such investigation as it deems necessary or advisable with respect to the
Company, its various departments and the conduct of its operations. The
Committee shall hold regular quarterly meetings and during the intervals thereof
shall meet at other times on call of the Chairman.
SECTION 3. The Board of Directors shall have the power to appoint any other
Committees as may seem necessary, and from time to time to suspend or continue
the powers and duties of such Committees. Each Committee appointed pursuant to
this Article shall serve at the pleasure of the Board of Directors.
ARTICLE IV
OFFICERS
SECTION 1. The Board of Directors shall elect from among their number a Chairman
of the Board and a Chief Executive Officer; and shall also elect a President,
and may also elect a Senior Vice Chairman, one or more Vice Chairmen, one or
more Executive Vice Presidents, one or more Senior Managing Directors, one or
more Managing Directors, one or more Senior Vice Presidents, one or more
Principals, one or more Vice Presidents, one or more General Managers, a
Secretary, a Controller, a Treasurer, a General Counsel, one or more Associate
General Counsels, a General Auditor, a General Credit Auditor, and one or more
Deputy Auditors, who need not be directors. The officers of the corporation may
also include such other officers or assistant officers as shall from time to
time be elected or appointed by the Board. The Chairman of the Board or the
Chief Executive Officer or, in their absence, the President, the Senior Vice
Chairman or any Vice Chairman, may from time to time appoint assistant officers.
All officers elected or appointed by the Board of Directors shall hold their
respective offices during the pleasure of the Board of Directors, and all
assistant officers shall hold office at the pleasure of the Board or the
Chairman of the Board or the Chief Executive Officer or, in their absence, the
President, the Senior Vice Chairman or any Vice Chairman. The Board of Directors
may require any and all officers and employees to give security for the faithful
performance of their duties.
SECTION 2. The Board of Directors shall designate the Chief Executive Officer of
the Company who may also hold the additional title of Chairman of the Board,
President, Senior Vice Chairman or Vice Chairman and such person shall have,
subject to the supervision and direction of the Board of Directors or the
Executive Committee, all of the powers vested in such Chief Executive Officer by
law or by these By-Laws, or which usually attach or pertain to such office. The
other officers shall have, subject to the supervision and direction of the Board
of Directors or the Executive Committee or the Chairman of the Board or, the
Chief Executive Officer, the powers vested by law or by these By-Laws in them as
holders of their respective offices and, in addition, shall perform such other
duties as shall be assigned to them by the Board of Directors or the Executive
Committee or the Chairman of the Board or the Chief Executive Officer.
The General Auditor shall be responsible, through the Audit Committee, to the
Board of Directors for the determination of the program of the internal audit
function and the evaluation of the adequacy of the system of internal controls.
Subject to the Board of Directors, the General Auditor shall have and may
exercise all the powers and shall perform all the duties usual to such office
and shall have such other powers as may be prescribed or assigned to him from
time to time by the Board of Directors or vested in him by law or by these
By-Laws. He shall perform such other duties and shall make such investigations,
examinations and reports as may be prescribed or required by the Audit
Committee. The General Auditor shall have unrestricted access to all records and
premises of the Company and shall delegate such authority to his subordinates.
He shall have the duty to report to the Audit Committee on all matters
concerning
the internal audit program and the adequacy of the system of internal controls
of the Company which he deems advisable or which the Audit Committee may
request. Additionally, the General Auditor shall have the duty of reporting
independently of all officers of the Company to the Audit Committee at least
quarterly on any matters concerning the internal audit program and the adequacy
of the system of internal controls of the Company that should be brought to the
attention of the directors except those matters responsibility for which has
been vested in the General Credit Auditor. Should the General Auditor deem any
matter to be of special immediate importance, he shall report thereon forthwith
to the Audit Committee. The General Auditor shall report to the Chief Financial
Officer only for administrative purposes.
The General Credit Auditor shall be responsible to the Chief Executive Officer
and, through the Audit Committee, to the Board of Directors for the systems of
internal credit audit, shall perform such other duties as the Chief Executive
Officer may prescribe, and shall make such examinations and reports as may be
required by the Audit Committee. The General Credit Auditor shall have
unrestricted access to all records and may delegate such authority to
subordinates.
SECTION 3. The compensation of all officers shall be fixed under such plan or
plans of position evaluation and salary administration as shall be approved from
time to time by resolution of the Board of Directors.
SECTION 4. The Board of Directors, the Executive Committee, the Chairman of the
Board, the Chief Executive Officer or any person authorized for this purpose by
the Chief Executive Officer, shall appoint or engage all other employees and
agents and fix their compensation. The employment of all such employees and
agents shall continue during the pleasure of the Board of Directors or the
Executive Committee or the Chairman of the Board or the Chief Executive Officer
or any such authorized person; and the Board of Directors, the Executive
Committee, the Chairman of the Board, the Chief Executive Officer or any such
authorized person may discharge any such employees and agents at will.
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 1. The Company shall, to the fullest extent permitted by Section 7018 of
the New York Banking Law, indemnify any person who is or was made, or threatened
to be made, a party to an action or proceeding, whether civil or criminal,
whether involving any actual or alleged breach of duty, neglect or error, any
accountability, or any actual or alleged misstatement, misleading statement or
other act or omission and whether brought or threatened in any court or
administrative or legislative body or agency, including an action by or in the
right of the Company to procure a judgment in its favor and an action by or in
the right of any other corporation of any type or kind, domestic or foreign, or
any partnership, joint venture, trust, employee benefit plan or other
enterprise, which any director or officer of the Company is servicing or served
in any capacity at the request of the Company by reason of the fact that he, his
testator or intestate, is or was a director or officer of the Company, or is
serving or served such other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise in any capacity, against judgments,
fines, amounts paid in settlement, and costs, charges and expenses, including
attorneys' fees, or any appeal therein; provided, however, that no
indemnification shall be provided to any such person if a judgment or other
final adjudication adverse to the director or officer establishes that (i) his
acts were committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
SECTION 2. The Company may indemnify any other person to whom the Company is
permitted to provide indemnification or the advancement of expenses by
applicable law, whether pursuant to rights granted pursuant to, or provided by,
the New York Banking Law or other rights created by (i) a resolution of
stockholders, (ii) a resolution of directors, or (iii) an agreement providing
for such indemnification, it being expressly intended that these By-Laws
authorize the creation of other rights in any such manner.
SECTION 3. The Company shall, from time to time, reimburse or advance to any
person referred to in Section 1 the funds necessary for payment of expenses,
including attorneys' fees, incurred in connection with any action or proceeding
referred to in Section 1, upon receipt of a written undertaking by or on behalf
of such person to repay such amount(s) if a judgment or other final adjudication
adverse to the director or officer establishes that (i) his acts were committed
in bad faith or were the result of active and deliberate dishonesty and, in
either case, were material to the cause of action so adjudicated, or (ii) he
personally gained in fact a financial profit or other advantage to which he was
not legally entitled.
SECTION 4. Any director or officer of the Company serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the Company, or (ii) any employee benefit plan of
the Company or any corporation referred to in clause (i) in any capacity shall
be deemed to be doing so at the request of the Company. In all other cases, the
provisions of this Article V will apply (i) only if the person serving another
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise so served at the specific request of the Company, evidenced by
a written communication signed by the Chairman of the Board, the Chief Executive
Officer or the President, and (ii) only if and to the extent that, after
making such efforts as the Chairman of the Board, the Chief Executive Officer or
the President shall deem adequate in the circumstances, such person shall be
unable to obtain indemnification from such other enterprise or its insurer.
SECTION 5. Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Article V may
elect to have the right to indemnification (or advancement of expenses)
interpreted on the basis of the applicable law in effect at the time of
occurrence of the event or events giving rise to the action or proceeding, to
the extent permitted by law, or on the basis of the applicable law in effect at
the time indemnification is sought.
SECTION 6. The right to be indemnified or to the reimbursement or advancement of
expense pursuant to this Article V (i) is a contract right pursuant to which the
person entitled thereto may bring suit as if the provisions hereof were set
forth in a separate written contract between the Company and the director or
officer, (ii) is intended to be retroactive and shall be available with respect
to events occurring prior to the adoption hereof, and (iii) shall continue to
exist after the rescission or restrictive modification hereof with respect to
events occurring prior thereto.
SECTION 7. If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the Company
within thirty days after a written claim has been received by the Company, the
claimant may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled also to be paid the expenses of prosecuting such
claim. Neither the failure of the Company (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in the
circumstance, nor an actual determination by the Company (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant is
not entitled to indemnification or to the reimbursement or advancement of
expenses, shall be a defense to the action or create a presumption that the
claimant is not so entitled.
SECTION 8. A person who has been successful, on the merits or otherwise, in the
defense of a civil or criminal action or proceeding of the character described
in Section 1 shall be entitled to indemnification only as provided in Sections 1
and 3, notwithstanding any provision of the New York Banking Law to the
contrary.
ARTICLE VI
SEAL
SECTION 1. The Board of Directors shall provide a seal for the Company, the
counterpart dies of which shall be in the charge of the Secretary of the Company
and such officers as the Chairman of the Board, the Chief Executive Officer or
the Secretary may from time to time direct in writing, to be affixed to
certificates of stock and other documents in accordance with the directions of
the Board of Directors or the Executive Committee.
SECTION 2. The Board of Directors may provide, in proper cases on a specified
occasion and for a specified transaction or transactions, for the use of a
printed or engraved facsimile seal of the Company.
ARTICLE VII
CAPITAL STOCK
SECTION 1. Registration of transfer of shares shall only be made upon the books
of the Company by the registered holder in person, or by power of attorney, duly
executed, witnessed and filed with the Secretary or other proper officer of the
Company, on the surrender of the certificate or certificates of such shares
properly assigned for transfer.
ARTICLE VIII
CONSTRUCTION
SECTION 1. The masculine gender, when appearing in these By-Laws, shall be
deemed to include the feminine gender.
ARTICLE IX
AMENDMENTS
SECTION 1. These By-Laws may be altered, amended or added to by the Board of
Directors at any meeting, or by the stockholders at any annual or special
meeting, provided notice thereof has been given.
I, Sandra L. West, Assistant Secretary of Bankers Trust Company, New York, New
York, hereby certify that the foregoing is a complete, true and correct copy of
the By-Laws of Bankers Trust Company, and that the same are in full force and
effect at this date.
/s/ Sandra L. West
---------------------------------
ASSISTANT SECRETARY
DATED: July 22, 1998
Legal Title of Bank: Bankers Trust Company Call Date: 12/31/97 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-1
City, State ZIP: New York, NY 10006 11
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for December 31, 1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, reported the amount outstanding as of the last business day of the
quarter.
Schedule RC--Balance Sheet
C400
Dollar Amounts in Thousands RCFD Bil Mil Thou
ASSETS / / / / / / / / / / / / / / / / / /
1. Cash and balances due from depository institutions (from Schedule RC-A): / / / / / / / / / / / / / / / / / /
a. Noninterest-bearing balances and currency and coin (1) ...... 0081 2,121,000 1.a.
b. Interest-bearing balances (2) ............................... 0071 4,770,000 1.b.
2. Securities: / / / / / / / / / / / / / / / / / /
a. Held-to-maturity securities (from Schedule RC-B, column A) .. 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D). 1773 4,015,000 2.b.
3. Federal funds sold and securities purchased under agreements to resell.. 1350 28,927,000 3.
4. Loans and lease financing receivables: / / / / / / / / / / / / / / / / / /
a. Loans and leases, net of unearned income / / / / / / / / / / / / / / / / / /
(from Schedule RC-C)......RCFD 2122 17,692,000 / / / / / / / / / / / / / / / / / / 4.a.
b. LESS: Allowance for loan and lease losses..RCFD 3123 659,000 / / / / / / / / / / / / / / / / / / 4.b.
c. LESS: Allocated transfer risk reserve ...RCFD 3128 0 / / / / / / / / / / / / / / / / / / 4.c.
d. Loans and leases, net of unearned income, / / / / / / / / / / / / / / / / / /
allowance, and reserve (item 4.a minus 4.b and 4.c) ............. 2125 17,033,000 4.d.
5. Trading Assets (from schedule RC-D) .................................. 3545 45,488,000 5.
6. Premises and fixed assets (including capitalized leases) .............. 2145 766,000 6.
7. Other real estate owned (from Schedule RC-M) .......................... 2150 188,000 7.
8. Investments in unconsolidated subsidiaries and associated companies / / / / / / / / / / / / / / / / / /
(from Schedule RC-M) 2130 58,000 8.
9. Customers' liability to this bank on acceptances outstanding .......... 2155 633,000 9.
10. Intangible assets (from Schedule RC-M) ................................. 2143 83,000 10.
11. Other assets (from Schedule RC-F) ...................................... 2160 5,957,000 11.
12. Total assets (sum of items 1 through 11) ............................... 2170 110,039,000 12.
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(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
Legal Title of Bank: Bankers Trust Company Call Date: 12/31/97 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-2
City, State Zip: New York, NY 10006 12
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
Schedule RC--Continued
Dollar Amounts in Thousands Bil Mil Thou
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C from
Schedule RC-E, part I) RCON 2200 24,608,000 13.
(1) Noninterest-bearing(1) ........RCON 6631 2,856,000.... / / / / / / / / / / / / / / / 13.
(2) Interest-bearing ...............RCON 6636 21,752,000.... / / / / / / / / / / / / / / / 13.
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E part II) RCFN 2200 20,529,000 13.
(1) Noninterest-bearing ...........RCFN 6631 2,122,000 / / / / / / / / / / / / / / / 13.
(2) Interest-bearing ..............RCFN 6636 18,407,000 / / / / / / / / / / / / / / / 13.
14. Federal funds purchased and securities sold under agreements to repurchase RCFD 2800 13,777,000 14.
15. a. Demand notes issued to the U.S. Treasury ........................... RCON 2840 0 15.
b. Trading liabilities (from Schedule RC-D)............................ RCFD 3548 24,968,000 15.
16. Other borrowed money (includes mortgage indebtedness and obligations
under capitalized leases): / / / / / / / / / / / / / / /
a. With a remaining maturity of one year or less ...................... RCFD 2332 5,810,000 16.
b. With a remaining maturity of more than one year through three years.. A547 4,702,000 16.
c. With a remaining maturity of more than three years..................... A548 1,750,000 16.
17. Not Applicable. / / / / / / / / / / / / / / / 17.
18. Bank's liability on acceptances executed and outstanding .................. RCFD 2920 633,000 18.
19. Subordinated notes and debentures (2)...................................... RCFD 3200 1,307,000 19.
20. Other liabilities (from Schedule RC-G) .................................... RCFD 2930 5,961,000 20.
21. Total liabilities (sum of items 13 through 20) ............................ RCFD 2948 104,045,000 21.
22. Not Applicable / / / / / / / / / / / / / / / 22.
EQUITY CAPITAL / / / / / / / / / / / / / / /
23. Perpetual preferred stock and related surplus ............................. RCFD 3838 1,000,000 23.
24. Common stock .............................................................. RCFD 3230 1,352,000 24.
25. Surplus (exclude all surplus related to preferred stock) .................. RCFD 3839 540,000 25.
26. a. Undivided profits and capital reserves ............................... RCFD 3632 3,526,000 26.
b. Net unrealized holding gains (losses) on available-for-sale securities RCFD 8434 ( 45,000) 26.
27. Cumulative foreign currency translation adjustments ....................... RCFD 3284 ( 379,000) 27.
28. Total equity capital (sum of items 23 through 27) ......................... RCFD 3210 5,994,000 28.
29. Total liabilities and equity capital (sum of items 21 and 28).............. RCFD 3300 110,039,000 29
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the
most comprehensive level of auditing work performed for the bank by independent external Number
auditors as of any date during 1996......................................................| RCFD 6724 N/A M.1
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards by a certified
public accounting firm (may be required by state chartering authority)
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(1) Including total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
