Exhibit 4(a)(26)
FORM
OF
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
NWPS CAPITAL FINANCING I
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated and
effective as of _______________, 1995, by the undersigned trustees (together
with all other Persons from time to time duly appointed and serving as trustees
in accordance with the provisions of this Declaration, the "Trustees"),
Northwestern Public Service Company, a Delaware corporation, as trust sponsor
(the "Sponsor"), and by the holders, from time to time, of undivided beneficial
interests in the assets of the Trust to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor established a trust (the "Trust") under
the Delaware Business Trust Act (the "Business Trust Act") pursuant to a
Declaration of Trust dated as of June 19, 1995 (the "Original Declaration"), and
a Certificate of Trust filed with the Secretary of State of the State of
Delaware on June 19, 1995 for the sole purpose of issuing and selling certain
securities representing undivided beneficial interests in the assets of the
Trust and investing the proceeds thereof in certain Debentures (as defined
herein) of the Debenture Issuer (as defined herein).
WHEREAS, all of the Trustees and the Sponsor, by this Declaration, amend and
restate each and every term and provision of the Original Declaration; and
NOW, THEREFORE, it being the intention of the parties hereto to continue the
Trust as a business trust under the Business Trust Act and that this Declaration
constitute the governing instrument of such business trust, the Trustees declare
that all assets contributed to the Trust will be held in trust for the benefit
of the holders, from time to time, of the securities representing undivided
beneficial interests in the assets of the Trust issued hereunder, subject to the
provisions of this Declaration.
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 DEFINITIONS.
(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this
Section 1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to
this Declaration as modified, supplemented or amended from time to
time;
(d) all references in this Declaration to Articles and Sections and
Exhibits are to Articles and Sections of and Exhibits to this
Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Declaration unless otherwise defined in this
Declaration or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 promulgated
under of the Securities Act or any successor rule thereunder.
"Appointment Event" means an event defined in the terms of the Securities, as
set forth in Exhibit A, which entitles the Holders of a Majority in liquidation
amount of the Preferred Securities to appoint a Special Regular Trustee.
"Authorized Officer" of a Person means any Person that is authorized to bind
such Person.
"Book Entry Interest" means a beneficial interest in a Global Certificate,
ownership and transfers of which shall be maintained and made through book
entries by a Clearing Agency as described in Section 9.4.
"Business Day" means any day other than Saturday, Sunday or any other day on
which banking institutions in New York, New York are authorized or required by
applicable law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12 Del.
Code Section 3801 et seq., as it may be amended from time to time, or any
successor legislation.
"Certificate" means a Common Security Certificate or a Preferred Security
Certificate.
"Clearing Agency" means an organization registered as a "Clearing Agency"
pursuant to Section 17A of the Exchange Act that is acting as depositary for the
Preferred Securities and in whose name or in the name of a nominee of that
organization, shall be registered a Global Certificate and which shall undertake
to effect book entry transfers and pledges of the Preferred Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time the Clearing Agency
effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
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"Code" means the Internal Revenue Code of 1986, as amended from time to time, or
any successor legislation.
"Commission" means the Securities and Exchange Commission.
"Common Security" has the meaning specified in Section 7.1.
"Common Securities Guarantee" means the guarantee agreement to be dated as of
__________, 1995 of the Sponsor in respect of the Common Securities.
"Common Security Certificate" means a definitive certificate in fully registered
form representing a Common Security substantially in the form of Annex II to
Exhibit A.
"Covered Person" means: (a) any officer, director, shareholder, partner, member,
representative, employee or agent of (i) the Trust or (ii) the Trust's
Affiliates; and (b) any Holder of Securities.
"Debenture Issuer" means Northwestern Public Service Company in its capacity as
issuer of the Debentures.
"Debenture Trustee" means The Chase Manhattan Bank (N.A.), as trustee under the
Indenture, until a successor is appointed thereunder, and thereafter means such
successor trustee.
"Debentures" means the series of Debentures entitled "___% Junior Subordinated
Debentures due ____" to be issued to the Property Trustee by the Debenture
Issuer under the Indenture, a specimen certificate of which is attached as
Exhibit B.
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Definitive Preferred Security Certificates" has the meaning set forth in
Section 9.4.
"Direction" by a Person means a written direction signed:
(a) if the Person is a natural person, by that Person; or
(b) in any other case, in the name of such Person by one or more
Authorized Officers of that Person.
"Distribution" means a distribution payable to Holders of Securities in
accordance with Section 6.1.
"DTC" means The Depository Trust Company, the initial Clearing Agency.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended from time
to time, or any successor legislation.
"Event of Default" in respect of the Securities means an Event of Default (as
defined in the Indenture) has occurred and is continuing in respect of the
Debentures.
"Global Certificate" has the meaning set forth in Section 9.4.
"Holder" means a Person in whose name a Certificate representing a Security is
registered, such Person being a beneficial owner within the meaning of the
Business Trust Act.
"Indemnified Person" means any Trustee, any Affiliate of any Trustee, or any
officers, directors, shareholders, members, partners, employees, representatives
or agents of any Trustee, or any employee or agent of the Trust or its
Affiliates.
"Indenture" means the Indenture dated as of __________, 1995, between the
Debenture Issuer and The Chase Manhattan Bank (N.A.), as trustee, and the
indenture supplemental thereto pursuant to which the Debentures are to be
issued.
"Investment Company" means an investment company as defined in the Investment
Company Act.
"Investment Company Act" means the Investment Company Act of 1940, as amended
from time to time, or any successor legislation.
"Investment Company Event" means that the Regular Trustees shall have received
an opinion of nationally recognized independent counsel experienced in practice
under the Investment Company Act, that as a result of the occurrence of a change
in law or regulation by any legislative body, court, governmental agency or
regulatory authority (a "Change in 1940 Act Law"), the Trust is or will be
considered an "investment company" which is required to be registered under the
1940 Act, which Change in 1940 Act Law becomes effective on or after the date of
the Prospectus Supplement relating to the Debentures. In case of any
uncertainty regarding an Investment Company Event, the good faith determination
of the Regular Trustees, based on the advice of counsel, shall be conclusive.
"Legal Action" has the meaning set forth in Section 3.6(g).
"List of Holders" has the meaning set forth in Section 2.2.
"Majority in liquidation amount of the Securities" means, except as provided in
the terms of the Securities and by the Trust Indenture Act, a vote by Holder(s)
of Securities voting together as a single class or, as the context may require,
a vote by Holder(s) of Preferred Securities or Holder(s) of Common Securities
voting separately as a class, representing a majority of the liquidation amount
(including the stated amount that would be paid on
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redemption, liquidation or otherwise, plus accrued and unpaid Distributions to
the date upon which the voting percentages are determined) of all Securities of
such class.
"Ministerial Action" has the meaning set forth in the terms of the Securities as
set forth in Exhibit A.
"Officers' Certificate" means, with respect to any Person, a certificate signed
by two Authorized Officers of such Person. Any Officers' Certificate delivered
with respect to compliance with a condition or covenant provided for in this
Declaration shall include:
(a) a statement that each officer signing the Certificate has read the
covenant or condition and the definition relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer, such
condition or covenant has been complied with.
"Paying Agent" has the meaning specified in Section 3.8(h).
"Person" means a legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint stock company, limited liability
company, trust, unincorporated association, or government or any agency or
political subdivision thereof, or any other entity of whatever nature.
"Preferred Securities Guarantee" means the guarantee agreement to be dated as of
__________, 1995, of the Sponsor in respect of the Preferred Securities.
"Preferred Security" has the meaning specified in Section 7.1.
"Preferred Security Beneficial Owner" means, with respect to a Book Entry
Interest, a Person who is the beneficial owner of such Book Entry Interest, as
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly as a Clearing Agency
Participant or as an indirect participant, in each case in accordance with the
rules of such Clearing Agency).
"Preferred Security Certificate" means a certificate representing a Preferred
Security substantially in the form of Annex I to Exhibit A.
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"Pricing Agreement" means the pricing agreement between the Trust, the Debenture
Issuer, and the underwriters designated by the Regular Trustees with respect to
the offer and sale of the Preferred Securities.
"Property Trustee" means the Trustee meeting the eligibility requirements set
forth in Section 5.3.
"Property Trustee Account" has the meaning set forth in Section 3.8(c).
"Quorum" means a majority of the Regular Trustees or, if there are only two
Regular Trustees, both of them.
"Regular Trustee" means any Trustee other than the Property Trustee and the
Delaware Trustee.
"Related Party" means, with respect to the Sponsor, any direct or indirect
wholly owned subsidiary of the Sponsor or any other Person that owns, directly
or indirectly, 100% of the outstanding voting securities of the Sponsor.
"Responsible Officer" means, with respect to the Property Trustee, any
vice-president, any assistant vice-president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, any trust officer or
assistant trust officer or any other officer in the Corporate Trust Department
of the Property Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of that officer's knowledge of and familiarity with the
particular subject.
"Rule 3a-7" means Rule 3a-7 promulgated under the Investment Company Act or any
successor rule thereunder.
"Securities" means the Common Securities and the Preferred Securities.
"Securities Act" means the Securities Act of 1933, as amended from time to time,
or any successor legislation.
"66-2/3% in liquidation amount of the Securities" means, except as provided in
the terms of the Preferred Securities and by the Trust Indenture Act, a vote by
Holder(s) of Securities voting together as a single class or, as the context may
require, a vote by Holder(s) of Preferred Securities or Holder(s) of Common
Securities voting separately as a class, representing 66 2/3% of the liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all Securities of such class.
"Special Event" means an Investment Company Event or a Tax Event.
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"Special Regular Trustee" means a Regular Trustee appointed by the Holders of a
Majority in liquidation amount of the Preferred Securities in accordance with
Section 5.6(a)(ii)(B).
"Sponsor" means Northwestern Public Service Company, a Delaware corporation, or
any successor entity in a merger, consolidation or amalgamation, in its capacity
as sponsor of the Trust.
"Successor Entity" has the meaning set forth in Section 3.15.
"Successor Securities" has the meaning set forth in Section 3.15.
"Super Majority" has the meaning set forth in Section 5(b) of the terms of
Securities, as set forth in Exhibit A.
"Tax Event" means that the Regular Trustees shall have received an opinion of
nationally recognized independent tax counsel experienced in such matters to the
effect that, as a result of (a) any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations thereunder) of
the United States or any political subdivision or taxing authority thereof or
therein, (b) any amendment to or change in an interpretation or application of
any such laws or regulations by any legislative body, court, governmental agency
or regulatory authority (including the enactment of any legislation and the
publication of any judicial decision or regulatory determination on or after the
date of the Prospectus Supplement relating to the Debentures), (c) any
interpretation or pronouncement that provides for a position with respect to
such laws or regulations that differs from the theretofore generally accepted
position, or (d) any action taken by any governmental agency or regulatory
authority, which amendment or change is enacted, promulgated or effective, or
which interpretation or pronouncement is issued or announced, or which action is
taken, in each case on or after the date of the Prospectus Supplement relating
to the Debentures, there is more than an insubstantial risk that (i) the Trust
is or will be subject to United States federal income tax with respect to income
accrued or received on the Debentures, (ii) interest payable to the Trust on the
Debentures is not or will not be deductible by the Debenture Issuer for United
States federal income tax purposes or (iii) the Trust is or will be subject to
more than a de minimis amount of other taxes, duties or other governmental
charges.
"10% in liquidation amount of the Securities" means, except as provided in the
terms of the Preferred Securities and by the Trust Indenture Act, the vote by
Holder(s) of Securities voting together as a single class or, as the context may
require, the vote by Holder(s) of Preferred Securities or Holder(s) of Common
Securities, voting separately as a class, representing 10% of the liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all Securities of such class.
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"Treasury Regulations" means the income tax regulations, including temporary and
proposed regulations, promulgated under the Code by the United States Treasury,
as such regulations may be amended from time to time (including corresponding
provisions of succeeding regulations).
"Trustee" or "Trustees" means each Person who has signed this Declaration as a
trustee, so long as such Person shall continue in office in accordance with the
terms hereof, and all other Persons who may from time to time be duly appointed,
qualified and serving as Trustees in accordance with the provisions hereof, and
references herein to a Trustee or the Trustees shall refer to such Person or
Persons solely in their capacity as trustees hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended from
time to time, or any successor legislation.
"Underwriting Agreement" means the Underwriting Agreement for the offering and
sale of Preferred Securities in the form of Exhibit C.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 TRUST INDENTURE ACT; APPLICATION.
(a) This Declaration is subject to the provisions of the Trust Indenture
Act that are required to be part of this Declaration and shall, to
the extent applicable, be governed by such provisions;
(b) the Property Trustee shall be the only Trustee which is a Trustee
for the purposes of the Trust Indenture Act;
(c) if and to the extent that any provision of this Declaration limits,
qualifies or conflicts with the duties imposed by Sections 310 to
317, inclusive, of the Trust Indenture Act, such imposed duties
shall control; and
(d) the application of the Trust Indenture Act to this Declaration shall
not affect the nature of the Securities as equity securities
representing undivided beneficial interests in the assets of the
Trust.
SECTION 2.2 LISTS OF HOLDERS OF SECURITIES.
(a) Each of the Sponsor, the Debenture Issuer and the Regular Trustees
on behalf of the Trust shall provide the Property Trustee (i) within
14 days after each record date for payment of Distributions, a list,
in such form as the Property Trustee may reasonably require, of the
names and addresses of the
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Holders of the Securities ("List of Holders") as of such record
date, provided that none of the Sponsor, the Debenture Issuer or the
Regular Trustees on behalf of the Trust shall be obligated to
provide such List of Holders at any time the List of Holders does
not differ from the most recent List of Holders given to the
Property Trustee by the Sponsor, the Debenture Issuer and the
Regular Trustees on behalf of the Trust, and (ii) at any other time,
within 30 days of receipt by the Trust of a written request for a
List of Holders as of a date no more than 14 days before such List
of Holders is given to the Property Trustee. The Property Trustee
shall preserve, in as current a form as is reasonably practicable,
all information contained in Lists of Holders given to it or which
it receives in the capacity as Paying Agent (if acting in such
capacity) provided that the Property Trustee may destroy any List of
Holders previously given to it on receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations under
Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 REPORTS BY THE PROPERTY TRUSTEE.
Within 60 days after May 15 of each year, the Property Trustee shall provide to
the Holders of the Preferred Securities such reports as are required by Section
313 of the Trust Indenture Act, if any, in the form and in the manner provided
by Section 313 of the Trust Indenture Act. The Property Trustee shall also
comply with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4 PERIODIC REPORTS TO PROPERTY TRUSTEE.
Each of the Sponsor, the Debenture Issuer and the Regular Trustees on behalf of
the Trust shall provide to the Property Trustee such documents, reports and
information as required by Section 314 (if any) and the compliance certificate
required by Section 314 of the Trust Indenture Act in the form, in the manner
and at the times required by Section 314 of the Trust Indenture Act.
SECTION 2.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
Each of the Sponsor, the Debenture Issuer and the Regular Trustees on behalf of
the Trust shall provide to the Property Trustee such evidence of compliance with
any conditions precedent, if any, provided for in this Declaration that relate
to any of the matters set forth in Section 314(c) of the Trust Indenture Act.
Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) may be given in the form of an Officers' Certificate.
SECTION 2.6 EVENTS OF DEFAULT; WAIVER.
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(a) The Holders of a Majority in liquidation amount of the Preferred
Securities may, by vote, on behalf of the Holders of all of the
Preferred Securities, waive any past Event of Default in respect of
the Preferred Securities and its consequences, provided that, if the
Event of Default arises out of an Event of Default under the
Indenture:
(i) which is not waivable under the Indenture, the Event of
Default under the Declaration shall also not be waivable; or
(ii) which requires the consent or vote of all or a Super Majority
of the holders of the Debentures to be waived under the
Indenture, the Event of Default under the Declaration may only
be waived by the vote of all of the Holders of the Preferred
Securities or such proportion thereof in liquidation amount as
represents the relevant Super Majority of the aggregate
principal amount of the Preferred Securities outstanding.
Upon such waiver, any such default shall cease to exist, and
any Event of Default with respect to the Preferred Securities
arising therefrom shall be deemed to have been cured, for
every purpose of this Declaration, but no such waiver shall
extend to any subsequent or other default or an Event of
Default with respect to the Preferred Securities or impair any
right consequent thereon. Any waiver by the Holders of the
Preferred Securities of an Event of Default with respect to
the Preferred Securities shall also be deemed to constitute a
waiver by the Holders of the Common Securities of any such
Event of Default with respect to the Common Securities for all
purposes of this Declaration without any further act, vote, or
consent of the Holders of the Common Securities.
(b) The Holders of a Majority in liquidation amount of the Common
Securities may, by vote, on behalf of the Holders of all of the
Common Securities, waive any past Event of Default with respect to
the Common Securities and its consequences, provided that, if the
Event of Default arises out of an Event of Default under the
Indenture:
(i) which is not waivable under the Indenture, except where the
Holders of the Common Securities are deemed to have waived
such Event of Default under the Declaration as provided below
in this Section 2.6(b), the Event of Default under the
Declaration is not waivable; or
(ii) which requires the consent or vote of a Super Majority to be
waived, except where the Holders of the Common Securities are
deemed to have waived such Event of Default under the
Declaration as provided below in this Section 2.6(b), the
Events of Default under the
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Declaration may only be waived by the vote of the Holders of
at least the proportion in liquidation amount of the Preferred
Securities as represents the relevant Super Majority of the
aggregate principal amount of the Debentures outstanding;
provided that, each Holder of Common Securities will be deemed
to have waived any such Event of Default and all Events of
Default with respect to the Common Securities and its
consequences until all Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise
eliminated, and until such Events of Default have been so
cured, waived or otherwise eliminated, the Property Trustee
will be deemed to be acting solely on behalf of the Holders of
the Preferred Securities and only the Holders of the Preferred
Securities will have the right to direct the Property Trustee
in accordance with the terms of the Securities. Subject to
the foregoing provisions of this Section 2.6(b), upon such
waiver, any such default shall cease to exist and any Event of
Default with respect to the Common Securities arising
therefrom shall be deemed to have been cured, for every
purpose of this Declaration, but no such waiver shall extend
to any subsequent or other default or Event of Default with
respect to the Common Securities or impair any right
consequent thereon.
(c) A waiver of an Event of Default under the Indenture by the
Property Trustee at the direction of the Holders of the
Preferred Securities, constitutes a waiver of the
corresponding Event of Default under this Declaration.
SECTION 2.7 EVENT OF DEFAULT; NOTICE.
(a) The Property Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first
class postage prepaid, to the Holders of the Securities,
notices of all defaults with respect to the Securities known
to the Property Trustee, unless such defaults have been cured
before the giving of such notice (the term "defaults" for the
purposes of this Section 2.7(a) being hereby defined to be an
Event of Default as defined in the Indenture, not including
any periods of grace provided for therein and irrespective of
the giving of any notice provided therein; provided that,
except for a default in the payment of principal of (or
premium, if any) or interest on any of the Debentures or in
the payment of any sinking fund installment established for
the Debentures, the Property Trustee shall be protected in
withholding such notice if and so long as the board of
directors, the executive committee, or a trust committee of
directors and/or Responsible Officers of the Property Trustee
in good faith determines that the
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withholding of such notice is in the interests of the Holders
of the Securities.
(b) The Property Trustee shall not be deemed to have knowledge of
any default except:
(i) a default under Sections 6.01(a)(1) and 6.01(a)(2) of
the Indenture; or
(ii) any default as to which the Property Trustee shall have
received written notice or a Responsible Officer charged
with the administration of the Declaration shall have
obtained written notice of.
ARTICLE III
ORGANIZATION
SECTION 3.1 NAME.
The Trust is named "NWPS Capital Financing I", as such name may be modified from
time to time by the Regular Trustees following written notice to the Holders of
Securities. The Trust's activities may be conducted under the name of the Trust
or any other name deemed advisable by the Regular Trustees.
SECTION 3.2 OFFICE.
The address of the principal office of the Trust is c/o Northwestern Public
Service Company, 33 Third Street, S.E., Huron, South Dakota 57350. On ten
Business Days written notice to the Holders of Securities, the Regular Trustees
may designate another principal office. The name of the registered agent and
office of the Trust in the State of Delaware is Wilmington Trust Company, Rodney
Square North, 1100 Market Street, Wilmington, Delaware 19890. At any time, the
Regular Trustees may designate another registered agent and/or office.
SECTION 3.3 PURPOSE.
The exclusive purposes and functions of the Trust are (a) to issue and sell
Securities and use the proceeds from such sale to acquire the Debentures, and
(b) except as otherwise limited herein, to engage in only those other activities
necessary or incidental thereto. The Trust shall not borrow money, issue debt
or reinvest proceeds derived from investments, pledge any of its assets, or
otherwise undertake (or permit to be undertaken) any activity that would (i)
cause the Trust not to be classified for United States federal income tax
purposes as a
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grantor trust or (ii) cause each Holder of Securities not to be treated as
owning an undivided beneficial interest in the Debentures at any time the
Securities are outstanding.
SECTION 3.4 AUTHORITY.
Subject to the limitations provided in this Declaration and to the specific
duties of the Property Trustee, the Regular Trustees shall have exclusive and
complete authority to carry out the purposes of the Trust. An action taken by
the Regular Trustees in accordance with their powers shall constitute the act of
and serve to bind the Trust and an action taken by the Property Trustee in
accordance with its powers shall constitute the act of and serve to bind the
Trust. In dealing with the Trustees acting on behalf of the Trust, no Person
shall be required to inquire into the authority of the Trustees to bind the
Trust. Persons dealing with the Trust are entitled to rely conclusively on the
power and authority of the Trustees as set forth in this Declaration.
SECTION 3.5 TITLE TO PROPERTY OF THE TRUST.
Except as provided in Section 3.8 with respect to the Debentures and the
Property Trustee Account or as otherwise provided in this Declaration, legal
title to all assets of the Trust shall be vested in the Trust. The Holders
shall not have legal title to any part of the assets of the Trust, but shall
have an undivided beneficial interest in the assets of the Trust.
SECTION 3.6 POWERS AND DUTIES OF THE REGULAR TRUSTEES.
Subject to Section 4.2, the Regular Trustees shall have the exclusive power,
duty and authority to cause the Trust to engage in the following activities:
(a) to issue and sell the Preferred Securities and the Common Securities
in accordance with this Declaration; provided, however, that the
Trust may issue no more than one series of Preferred Securities and
no more than one series of Common Securities, and, provided further,
that there shall be no interests in the Trust other than the
Securities, and the issuance of Securities shall be limited to a
one-time, simultaneous issuance of both Preferred Securities and
Common Securities;
(b) in connection with the issue and sale of the Preferred Securities,
to:
(i) execute and file with the Commission the registration
statement on Form S-3 prepared by the Sponsor, including any
amendments thereto, pertaining to the Preferred Securities;
(ii) execute and file any documents prepared by the Sponsor, or
take any acts as determined by the Sponsor to be necessary in
order to qualify or register all or part of the Preferred
Securities in any State in which
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the Sponsor has determined to qualify or register such
Preferred Securities for sale;
(iii) execute and file an application, prepared by the Sponsor, to
the New York Stock Exchange or any other national stock
exchange or the Nasdaq National Market for listing upon notice
of issuance of any Preferred Securities;
(iv) execute and file with the Commission a registration statement
on Form 8-A, including any amendments thereto, prepared by the
Sponsor relating to the registration of the Preferred
Securities under Section 12(b) of the Exchange Act; and
(v) execute and enter into the Underwriting Agreement and Pricing
Agreement providing for the sale of the Preferred Securities;
(c) to acquire the Debentures with the proceeds of the sale of the
Preferred Securities and the Common Securities; provided, however,
that the Regular Trustees shall cause legal title to the Debentures
to be held of record in the name of the Property Trustee for the
benefit of the Holders of the Preferred Securities and the Holders
or Common Securities;
(d) to give the Debenture Issuer, the Sponsor and the Property Trustee
prompt written notice of the occurrence of a Tax Event; provided
that the Regular Trustees shall consult with the Debenture Issuer,
the Sponsor and the Property Trustee before taking or refraining
from taking any Ministerial Action in relation to a Tax Event;
(e) to establish a record date with respect to all actions to be taken
hereunder that require a record date be established, including and
with respect to, for the purposes of Section 316(c) of the Trust
Indenture Act, Distributions, voting rights, redemptions and
exchanges, and to issue relevant notices to the Holders of Preferred
Securities and Holders of Common Securities as to such actions and
applicable record dates;
(f) to take all actions and perform such duties as may be required of
the Regular Trustees pursuant to the terms of the Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort to
legal action, or otherwise adjust claims or demands of or against
the Trust ("Legal Action"), unless pursuant to Section 3.8(e), the
Property Trustee has the exclusive power to bring such Legal Action;
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(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors,
advisors, and consultants and pay reasonable compensation for such
services;
(i) to cause the Trust to comply with the Trust's obligations under the
Trust Indenture Act;
(j) to give the certificate required by Section 314(a)(4) of the Trust
Indenture Act to the Property Trustee, which certificate may be
executed by any Regular Trustee;
(k) to incur expenses which are necessary or incidental to carry out any
of the purposes of the Trust;
(l) to act as, or appoint another Person to act as registrar and
transfer agent for the Securities;
(m) to give prompt written notice to the Holders of the Securities of
any notice received from the Debenture Issuer of its election (i) to
defer payments of interest on the Debentures by extending the
interest payment period under the Indenture, or (ii) to extend the
scheduled maturity date on the Debentures;
(n) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all
matters necessary or incidental to the foregoing;
(o) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence,
rights, franchises and privileges as a statutory business trust
under the laws of the State of Delaware and of each other
jurisdiction in which such existence is necessary to protect the
limited liability of the Holders of the Securities or to enable the
Trust to effect the purposes for which the Trust was created;
(p) to take any action, not inconsistent with this Declaration or with
applicable law, that the Regular Trustees determine in their
discretion to be necessary or desirable in carrying out the
activities of the Trust as set out in this Section 3.6, including,
but not limited to:
(i) causing the Trust not to be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(ii) causing the Trust not to be characterized for United States
federal income tax purposes as an association taxable as a
corporation or a
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partnership but for each Holder of Securities to be treated as
owning an undivided beneficial interest in the Debentures; and
(iii) cooperating with the Debenture Issuer to ensure that the
Debentures will be treated as indebtedness of the Debenture
Issuer for United States federal income tax purposes, provided
that such action does not adversely affect the interests of
Holders; and
(q) to take all action necessary to cause all applicable tax returns and
tax information reports that are required to be filed with respect
to the Trust to be duly prepared and filed by the Regular Trustees,
on behalf of the Trust.
The Regular Trustees must exercise the powers set forth in this Section 3.6 in a
manner that is consistent with the purposes and functions of the Trust set out
in Section 3.3, and the Regular Trustees shall not take any action that is
inconsistent with the purposes and functions of the Trust set forth in Section
3.3.
Subject to this Section 3.6, the Regular Trustees shall have none of the powers
or the authority of the Property Trustee set forth in Section 3.8.
SECTION 3.7 PROHIBITION OF ACTIONS BY THE TRUST AND THE TRUSTEES.
(a) The Trust shall not, and the Trustees (including the Property
Trustee) shall not engage in any activity other than as required or
authorized by this Declaration. In particular, the Trust shall not
and the Trustees (including the Property Trustee) shall not:
(i) invest any proceeds received by the Trust from holding the
Debentures but shall distribute all such proceeds to Holders
of Securities pursuant to the terms of this Declaration and of
the Securities;
(ii) acquire any assets other than as expressly provided herein;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness other than loans
represented by the Debentures;
(v) possess any power or otherwise act in such a way as to vary
the Trust assets or the terms of the Securities in any way
whatsoever;
(vi) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than
the Securities; or
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(vii) (A) direct the time, method and place of exercising any trust
or power conferred upon the Debenture Trustee with respect to
the Debentures, (B) waive any past default that is waivable
under Section 513 of the Indenture, (C) exercise any right to
rescind or annul any declaration that the principal of all the
Debentures shall be due and payable or (D) consent to any
amendment, modification or termination of the Indenture or the
Debentures, where such consent shall be required, unless the
Trust shall have received an opinion of counsel to the effect
that such modification will not cause more than an
insubstantial risk that for United States federal income tax
purposes the Trust will be characterized as an association
taxable as a corporation or a partnership and that each Holder
of Securities will not be treated as owning an undivided
beneficial interest in the Debentures.
SECTION 3.8 POWERS AND DUTIES OF THE PROPERTY TRUSTEE.
(a) The legal title to the Debentures shall be owned by and held of
record in the name of the Property Trustee in trust for the benefit
of the Holders of the Securities. The right, title and interest of
the Property Trustee to the Debentures shall vest automatically in
each Person who may hereafter be appointed as Property Trustee in
accordance with Section 5.6. Such vesting and cessation of title
shall be effective whether or not conveyancing documents with regard
to the Debentures have been executed and delivered;
(b) the Property Trustee shall not transfer its right, title and
interest in the Debentures to the Regular Trustees or to the
Delaware Trustee (if the Property Trustee does not also act as
Delaware Trustee);
(c) the Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing trust
account (the "Property Trustee Account") in the name of and
under the exclusive control of the Property Trustee on behalf
of the Holders of the Securities and, upon the receipt of
payments of funds made in respect of the Debentures held by
the Property Trustee, deposit such funds into the Property
Trustee Account and make payments to the Holders of the
Preferred Securities and Holders of the Common Securities from
the Property Trustee Account in accordance with Section 6.1.
Funds in the Property Trustee Account shall be held uninvested
until disbursed in accordance with this Declaration. The
Property Trustee Account shall be an account that is
maintained with a banking institution the rating on whose long
term unsecured indebtedness is at least equal to the rating
assigned to the Preferred Securities by a "nationally
recognized statistical rating organization", as
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that term is defined for purposes of Rule 436(g)(2) under the
Securities Act;
(ii) engage in such ministerial activities as shall be necessary or
appropriate to effect the redemption of the Preferred
Securities and the Common Securities to the extent the
Debentures are redeemed or mature; and
(iii) upon notice of distribution issued by the Regular Trustees in
accordance with the terms of the Preferred Securities and the
Common Securities, engage in such ministerial activities as
shall be necessary or appropriate to effect the distribution
of the Debentures to Holders of Securities upon the occurrence
of certain special events (as may be defined in the terms of
the Securities) arising from a change in law or a change in
legal interpretation or other specified circumstances pursuant
to the terms of the Securities;
(d) the Property Trustee shall take all actions and perform such duties
as may be specifically required of the Property Trustee pursuant to
the terms of the Securities;
(e) the Property Trustee shall take any Legal Action which arises out of
or in connection with an Event of Default or the Property Trustee's
duties and obligations under this Declaration or the Trust Indenture
Act;
(f) the Property Trustee shall not resign as a Trustee unless either:
(i) the Trust has been completely liquidated and the proceeds of
the liquidation distributed to the Holders of Securities
pursuant to the terms of the Securities; or
(ii) a Successor Property Trustee has been appointed and has
accepted that appointment in accordance with Section 5.6;
(g) the Property Trustee shall have the legal power to exercise all of
the rights, powers and privileges of a holder of Debentures under
the Indenture and, if an Event of Default occurs and is continuing,
the Property Trustee shall, for the benefit of Holders of the
Securities, enforce its rights as holder of the Debentures subject
to the rights of the Holders pursuant to the terms of such
Securities;
(h) the Property Trustee may authorize one or more Persons (each, a
"Paying Agent") to pay Distributions, redemption payments or
liquidation payments on behalf of the Trust with respect to all
securities and any such Paying Agent
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shall comply with Section 317(b) of the Trust Indenture Act. Any
Paying Agent may be removed by the Property Trustee at any time and
a successor Paying Agent or additional Paying Agents may be
appointed at any time by the Property Trustee; and
(i) subject to this Section 3.8, the Property Trustee shall have none of
the duties, liabilities, powers or the authority of the Regular
Trustees set forth in Section 3.6;
The Property Trustee must exercise the powers set forth in this Section
3.8 in a manner which is consistent with the purposes and functions of the
Trust set out in Section 3.3, and the Property Trustee shall not take any
action which is inconsistent with the purposes and functions of the Trust
set out in Section 3.3.
SECTION 3.9 CERTAIN DUTIES AND RESPONSIBILITIES OF THE PROPERTY TRUSTEE.
(a) The Property Trustee, before the occurrence of any Event of Default
and after the curing or waiver of all Events of Default that may
have occurred, shall undertake to perform only such duties as are
specifically set forth in this Declaration and no implied covenants
shall be read into this Declaration against the Property Trustee.
In case an Event of Default has occurred (that has not been cured or
waived pursuant to Section 2.6), the Property Trustee shall exercise
such of the rights and powers vested in it by this Declaration, and
use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the
conduct of his or her own affairs;
(b) no provision of this Declaration shall be construed to relieve the
Property Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except
that:
(i) prior to the occurrence of an Event of Default and after the
curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Property Trustee shall
be determined solely by the express provisions of this
Declaration and the Property Trustee shall not be liable
except for the performance of such duties and
obligations as are specifically set forth in this
Declaration, and no implied covenants or obligations
shall be read into this Declaration against the Property
Trustee; and
(B) in the absence of bad faith on the part of the Property
Trustee, the Property Trustee may conclusively rely, as
to the truth of
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the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions
furnished to the Property Trustee and conforming to the
requirements of this Declaration; but in the case of any
such certificates or opinions that by any provision
hereof are specifically required to be furnished to the
Property Trustee, the Property Trustee shall be under a
duty to examine the same to determine whether or not
they conform to the requirements of this Declaration;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the
Property Trustee, unless it shall be proved that the Property
Trustee was negligent in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than
a Majority in liquidation amount of the Securities at the time
outstanding relating to the time, method and place of
conducting any proceeding for any remedy available to the
Property Trustee, or exercising any trust or power conferred
upon the Property Trustee under this Declaration;
(iv) no provision of this Declaration shall require the Property
Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if
it shall have reasonable ground for believing that the
repayment of such funds or liability is not reasonably assured
to it under the terms of this Declaration or adequate
indemnity against such risk or liability is not reasonably
assured to it;
(v) the Property Trustee's sole duty with respect to the custody,
safe keeping and physical preservation of the Debentures and
the Property Trustee Account shall be to deal with such
property in a similar manner as the Property Trustee deals
with similar property for its own account, subject to the
protections and limitations on liability afforded to the
Property Trustee under this Declaration, the Trust Indenture
Act and Rule 3a-7;
(vi) the Property Trustee shall have no duty or liability for or
with respect to the value, genuineness, existence or
sufficiency of the Debentures or the payment of any taxes or
assessments levied thereon or in connection therewith;
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(vii) the Property Trustee shall not be liable for any interest on
any money received by it except as it may otherwise agree with
the Sponsor. Money held by the Property Trustee need not be
segregated from other funds held by it except in relation to
the Property Trustee Account maintained by the Property
Trustee pursuant to Section 3.8(c)(i) and except to the extent
otherwise required by law;
(viii) the Property Trustee shall not be responsible for monitoring
the compliance by the Regular Trustees or the Sponsors with
their respective duties under this Declaration, nor shall the
Property Trustee be liable for the default or misconduct of
the Regular Trustees or the Sponsor.
SECTION 3.10 CERTAIN RIGHTS OF PROPERTY TRUSTEE.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may rely and shall be fully protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties;
(ii) any direction or act of the Sponsor or the Regular Trustees
contemplated by this Declaration shall be sufficiently
evidenced by a Direction or an Officers' Certificate;
(iii) whenever in the administration of this Declaration, the
Property Trustee shall deem it desirable that a matter be
proved or established before taking, suffering or omitting any
action hereunder, the Property Trustee (unless other evidence
is herein specifically prescribed) may, in the absence of bad
faith on its part and, if the Trust is excluded from the
definition of an Investment Company solely by means of Rule
3a-7, subject to the requirements of Rule 3a-7, request and
rely upon an Officers' Certificate which, upon receipt of such
request, shall be promptly delivered by the Sponsor or the
Regular Trustees;
(iv) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including
any financing or continuation statement or any tax or
securities) (or any rerecording, refiling or registration
thereof);
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(v) the Property Trustee may consult with counsel and the advice
or opinion of such counsel and the experts with respect to
legal matters or advice within the scope of such experts' area
of expertise shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with such
advice or opinion such counsel may be counsel to the Sponsor
or any of its Affiliates, and may include any of its
employees. The Property Trustee shall have the right at any
time to seek instructions concerning the administration of
this Declaration from any court of competent jurisdiction;
(vi) the Property Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Declaration
at the request or direction of any Holder, unless such Holder
shall have provided to the Property Trustee adequate security
and indemnity, which would satisfy a reasonable person in the
position of the Property Trustee, against the costs, expenses
(including attorneys' fees and expenses) and liabilities that
might be incurred by it in complying with such request or
direction, including such reasonable advances as may be
requested by the Property Trustee, provided that nothing
contained in this Section 3.10(a)(vi) shall be taken to
relieve the Property Trustee, upon the occurrence of an Event
of Default, of its obligation to exercise the rights and
powers vested in it by this Declaration;
(vii) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper
or document, but the Property Trustee, in its discretion, may
make such further inquiry or investigation into such facts or
matters as it may see fit;
(viii)the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or
by or through agents or attorneys and the Property Trustee
shall not be responsible for any misconduct or negligence on
the part of any agent or attorney appointed with due care by
it hereunder;
(ix) any action taken by the Property Trustee or its agents
hereunder shall bind the Trust and the Holders of the
Securities and the signature of the Property Trustee or its
agents alone shall be sufficient and effective to perform any
such action; and no third party shall be required to inquire
as to the authority of the Property Trustee to so act, or as
to its compliance with any of the terms and provisions of this
Declaration,
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both of which shall be conclusively evidenced by the Property
Trustee's or its agent's taking such action;
(x) whenever in the administration of this Declaration the
Property Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or
taking any other action hereunder the Property Trustee (i) may
request instructions from the Holders of the Securities, which
instructions may only be given by the Holders of the same
proportion and liquidation amount of the Securities as would
be entitled to direct the Property Trustee under the terms of
the Securities in respect of such remedies, right or action,
(ii) may refrain from enforcing such remedy or right or taking
such other action until such instructions are received, and
(iii) shall be protected in acting in accordance with such
instructions; and
(xi) except as otherwise expressly provided by this Declaration,
the Property Trustee shall not be under any obligation to take
any action that is discretionary under the provisions of this
Declaration.
(b) No provision of this Declaration shall be deemed to impose any duty
or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed
on it, in any jurisdiction in which it shall be illegal, or in which
the Property Trustee shall be unqualified or incompetent, in
accordance with applicable law, to perform any such act or acts, or
to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee
shall be construed to be a duty.
SECTION 3.11 DELAWARE TRUSTEE.
Notwithstanding any other provision of this Declaration other than Section 5.2,
the Delaware Trustee shall not be entitled to exercise any powers, nor shall the
Delaware Trustee have any of the duties and responsibilities of the Regular
Trustees or the Property Trustee described in this Declaration. Except as set
forth in Section 5.2, the Delaware Trustee shall be a Trustee for the sole and
limited purpose of fulfilling the requirements of Section 3807 of the Business
Trust Act.
SECTION 3.12 EXECUTION OF DOCUMENTS.
Unless otherwise determined by the Regular Trustees, a majority of or, if there
are only two, both of the Regular Trustees are authorized to execute on behalf
of the Trust any documents which the Regular Trustees have the power and
authority to execute pursuant to Section 3.6; provided that, any listing
application prepared by the Sponsor referred to in Section 3.6(b)(iii) may be
executed by any Regular Trustee.
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SECTION 3.13 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained in this Declaration and the Securities shall be taken as
the statements of the Sponsor, and the Trustees do not assume any responsibility
for their correctness. The Trustees make no representations as to the value or
condition of the property of the Trust or any part thereof. The Trustees make
no representations as to the validity or sufficiency of this Declaration or the
Securities.
SECTION 3.14 DURATION OF TRUST.
The Trust, unless terminated pursuant to the provisions of Article VIII hereof,
shall have existence for 55 years from the date of the Prospectus Supplement
relating to the Debentures.
SECTION 3.15 MERGERS.
(A) The Trust may not consolidate, amalgamate, merge with or into, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body,
except as described in Section 3.15(b) and (c);
(b) the Trust may, with the consent of a majority of the Regular
Trustees and without the consent of the Holders of the Securities,
the Delaware Trustee or the Property Trustee consolidate,
amalgamate, merge with or into, or be replaced by a trust organized
as such under the laws of any State; provided, that:
(i) such successor entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust
under the Preferred Securities; or
(B) substitutes for the Preferred Securities other
securities (the "Successor Securities") so long as the
Successor Securities rank the same as the Preferred
Securities rank with respect to Distributions and
payments upon liquidation, redemption and maturity;
(ii) the Debenture Issuer expressly acknowledges a trustee of the
Successor Entity which possesses the same powers and duties as
the Property Trustee as the Holder of the Debentures;
(iii) the Preferred Securities or any Successor Securities are
listed, or any Successor Securities will be listed upon
notification of issuance, on any
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national securities exchange or other organization on which
the Preferred Securities are then listed;
(iv) such merger, consolidation, amalgamation or replacement does
not cause the Preferred Securities or any Successor Securities
to be downgraded by any nationally recognized statistical
rating organization;
(v) such merger, consolidation, amalgamation or replacement does
not adversely affect the rights, preferences and privileges of
the Holders of the Preferred Securities or any Successor
Securities in any material respect under the documents
governing the Preferred Securities or the Successor Securities
(other than with respect to any dilution of such Holders'
interests in the new entity);
(vi) such successor entity has a purpose substantially identical to
that of the Trust;
(vii) prior to such merger, consolidation, amalgamation or
replacement, the Sponsor has received an opinion of a
nationally recognized independent counsel to the Trust
experienced in such matters to the effect that:
(A) such merger, consolidation, amalgamation or replacement
does not adversely affect the rights, preferences and
privileges of the Holders of the Preferred Securities or
any Successor Securities in any material respect under
the documents governing the Preferred Securities or the
Successor Securities (other than with respect to any
dilution of the Holders' interest in the new entity);
and
(B) following such merger, consolidation, amalgamation or
replacement, neither the Trust nor the Successor Entity
will be required to register as an Investment Company;
and
(viii)the Sponsor guarantees the obligations of such Successor
Entity under the Successor Securities at least to the extent
provided by the Preferred Securities Guarantee; and
(c) notwithstanding Section 3.15(b), the Trust shall, except with the
consent of Holders of 100% in liquidation amount of the Securities,
not consolidate, amalgamate, merge with or into, or be replaced by
any other entity or permit any other entity to consolidate,
amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger or replacement would cause the Trust or
Successor Entity for United States federal income tax purposes to be
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classified as an association taxable as a corporation or a
partnership and each Holder of the Securities not to be treated as
owning an undivided beneficial interest in the Debentures.
ARTICLE IV
SPONSOR
SECTION 4.1 SPONSOR'S PURCHASE OF COMMON SECURITIES.
On ___________________ the Sponsor will purchase all the Common Securities
issued by the Trust, in an amount equal to 3% of the capital of the Trust, at
the same time as the Preferred Securities are sold. The purchase price paid for
the Common Securities shall constitute a contribution to the capital of the
Trust and shall not constitute a loan to the Trust.
SECTION 4.2 RESPONSIBILITIES OF THE SPONSOR.
In connection with the issue and sale of the Preferred Securities, the Sponsor
shall have the right and responsibility to engage in the following activities
and to execute on behalf of the Trust the documents referred to in subsections
(a) through (e) of this Section 4.2:
(a) to prepare for filing by the Trust with the Commission a
registration statement on Form S-3 in relation to the Preferred
Securities, including any amendments thereto;
(b) to determine the States in which to take appropriate action to
qualify or register for sale all or part of the Preferred Securities
and to take any and all such acts, other than actions which must be
taken by the Trust, and advise the Trust of actions it must take,
and prepare for execution and filing any documents to be executed
and filed by the Trust, as the Sponsor deems necessary or advisable
in order to comply with the applicable laws of any such States;
(c) to prepare for filing by the Trust an application to the New York
Stock Exchange or any other national stock exchange or the Nasdaq
National Market for listing upon notice of issuance of any Preferred
Securities;
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of
the Preferred Securities under Section 12(b) of the Exchange Act,
including any amendments thereto; and
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(e) to negotiate the terms of the Underwriting Agreement and Pricing
Agreement providing for the sale of the Preferred Securities.
4.3 EXPENSES
(a) The Sponsor shall be responsible for and pay for all (and the Trust
shall not be obligated to pay, directly or indirectly, for all)
debts and obligations (other than with respect to the Securities)
and all costs and expenses of the Trust, including, without
limitation, the costs and expenses relating to the organization of
the Trust, the issuance of the Preferred Securities, the fees and
expenses of any Special Regular Trustee, the Property Trustee and
the Delaware Trustee, the costs and expenses related to the
operation of the Trust, including, without limitation, the costs and
expenses of accountants, attorneys, statistical or bookkeeping
services, expenses of printing and engraving, paying agents(s),
registrar(s), transfer agent(s), duplicating, travel, telephone and
costs and expenses incurred in connection with the disposition of
Trust assets.
(b) The Sponsor will pay any and all taxes and all liabilities, costs
and expenses with respect to such taxes of the Trust.
ARTICLE V
TRUSTEES
SECTION 5.1 NUMBER OF TRUSTEES.
The number of Trustees shall initially be three (3), and:
(a) at any time before the issuance of any Securities, the Sponsor may,
by written instrument, increase or decrease the number of Trustees;
and
(b) after the issuance of any Securities:
(i) and except as provided in Sections 5.1(b)(ii) and
5.6(a)(ii)(b) with respect to the Special Regular Trustee, the
number of Trustees may be increased or decreased by vote of
the Holders of a Majority in liquidation amount of the Common
Securities voting as a class at a meeting of the Holders of
the Common Securities; and
(ii) the number of Trustees shall be increased automatically by one
(1) if an Appointment Event has occurred and is continuing and
the Holders of a Majority in liquidation amount of the
Preferred Securities appoint a Special Regular Trustee in
accordance with Section 5.6,
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provided that in any case, the number of Trustees shall be at least three (3)
(the majority of which shall be Regular Trustees), and if there are only three
Trustees:
(c) the Trustee that acts as the Property Trustee shall also act
as the Delaware Trustee pursuant to Section 5.2.
SECTION 5.2 DELAWARE TRUSTEE.
If required by the Business Trust Act, one Trustee (the "Delaware Trustee")
shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity which has its principal place of
business in the State of Delaware, and otherwise meets the
requirements of applicable law
provided that if the Property Trustee has its principal place of business in the
State of Delaware and otherwise meets the requirements of applicable law, then
the Property Trustee shall also be the Delaware Trustee and Section 3.11 shall
have no application.
SECTION 5.3 PROPERTY TRUSTEE; ELIGIBILITY.
(a) There shall at all times be one Trustee which shall act as Property
Trustee which shall:
(i) not be an Affiliate of the Sponsor;
(ii) be a corporation organized and doing business under the laws
of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or
Person permitted by the Commission to act as an institutional
trustee under the Trust Indenture Act, authorized under such
laws to exercise corporate trust powers, having a combined
capital and surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination by
Federal, State, Territorial or District of Columbia authority.
If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the
supervising or examining authority referred to above, then for
the purposes of this Section 5.3(a)(ii), the combined capital
and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent
report of condition so published; and
(iii) if the Trust is excluded from the definition of an Investment
Company solely by means of Rule 3a-7 and to the extent Rule
3a-7 requires a
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trustee having certain qualifications to hold title to the
"eligible assets" of the Trust, the Property Trustee shall
possess those qualifications.
(b) If at any time the Property Trustee shall cease to be eligible to so
act under Section 5.3(a), the Property Trustee shall immediately
resign in the manner and with the effect set out in Section 5.6(c)
(c) If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Property Trustee and the Holder of the Common
Securities (as if it were the obligor referred to in Section 310(b)
of the Trust Indenture Act) shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act.
(d) The Preferred Securities Guarantee shall be deemed to be
specifically described in this Declaration for purposes of clause
(i) of the first provision contained in Section 310(b) of the Trust
Indenture Act.
SECTION 5.4 QUALIFICATIONS OF REGULAR TRUSTEES AND DELAWARE TRUSTEE
GENERALLY.
Each Regular Trustee and the Delaware Trustee (unless the Property Trustee also
acts as Delaware Trustee) shall be either a natural person who is at least 21
years of age or a legal entity that shall act through one or more Authorized
Officers.
SECTION 5.5 INITIAL TRUSTEES.
The initial Regular Trustees shall be:
Merle D. Lewis
33 Third Street SE
P.O. Box 1318
Huron, South Dakota 57350-1318
Richard R. Hylland
33 Third Street SE
P.O. Box 1318
Huron, South Dakota 57350-1318
The initial Delaware Trustee shall be:
Wilmington Trust Company
Rodney Square North
1100 N. Market Street
Wilmington, Delaware 19890-0001
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who shall also act as Property Trustee.
SECTION 5.6 APPOINTMENT, REMOVAL AND RESIGNATION OF TRUSTEES.
(a) Subject to Section 5.6(b), Trustees may be appointed or removed
without cause at any time:
(i) until the issuance of any Securities, by written instrument
executed by the Sponsor; and
(ii) after the issuance of any Securities;
(A) other than in respect to a Special Regular Trustee by
vote of the Holders of a Majority in liquidation amount
of the Common Securities voting as a class at a meeting
of the Holders of the Common Securities; and
(B) if an Appointment Event has occurred and is continuing,
one (1) additional Regular Trustee (the "Special Regular
Trustee") may be appointed by vote of the Holders of a
Majority in liquidation amount of the Preferred
Securities, voting as a class at a meeting of the
Holders of the Preferred Securities and such Special
Regular Trustee may only be removed (otherwise than by
the operation of Section 5.6(c)), by vote of the Holders
of a Majority in liquidation amount of the Preferred
Securities voting as a class at a meeting of the Holders
of the Preferred Securities.
(b) (i) The Trustee that acts as Property Trustee shall not be removed
in accordance with Section 5.6(a) until a successor Property
Trustee has been appointed and has accepted such appointment
by written instrument executed by such successor Property
Trustee and delivered to the Regular Trustees and the Sponsor;
and
(ii) the Trustee that acts as Delaware Trustee shall not be removed
in accordance with this Section 5.6(a) until a successor
Trustee possessing the qualifications to act as Delaware
Trustee under Sections 5.2 and 5.4 (a "Successor Delaware
Trustee") has been appointed and has accepted such appointment
by written instrument executed by such Successor Delaware
Trustee and delivered to the Regular Trustees and the Sponsor.
(c) A Trustee appointed to office shall hold office until his successor
shall have been appointed or until his death, removal or
resignation, provided that a
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Special Regular Trustee shall only hold office while an Appointment
Event is continuing and shall cease to hold office immediately after
the Appointment Event pursuant to which the Special Regular Trustee
was appointed and all other Appointment Events cease to be
continuing. Any Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing signed
by the Trustee and delivered to the Sponsor and the Trust, which
resignation shall take effect upon such delivery or upon such later
date as is specified therein; provided, however, that:
(i) no such resignation of the Trustee that acts as the Property
Trustee shall be effective:
(A) until a Successor Property Trustee has been appointed
and has accepted such appointment by instrument executed
by such Successor Property Trustee and delivered to the
Trust, the Sponsor and the resigning Property Trustee;
or
(B) if the Trust is not deemed an Investment Company solely
by reason of Rule 3a-7, until the assets of the Trust
have been completely liquidated and the proceeds thereof
distributed to the Holders of the Securities; and
(ii) no such resignation of the Trustee that acts as the Delaware
Trustee shall be effective until a Successor Delaware Trustee
has been appointed and has accepted such appointment by
instrument executed by such Successor Delaware Trustee and
delivered to the Trust, the Sponsor and the resigning Delaware
Trustee; and
(iii) no such resignation of a Special Regular Trustee shall be
effective until the 60th day following delivery of the
instrument of resignation of the Special Regular Trustee to
the Sponsor and the Trust or such later date specified in such
instrument during which period the Holders of the Preferred
Securities shall have the right to appoint a successor Special
Regular Trustee as provided in this Section 5.6; and
(d) the Holders of the Common Securities shall use their best efforts to
appoint promptly a successor Delaware Trustee or successor Property
Trustee, as the case may be, if the Delaware Trustee or the Property
Trustee delivers an instrument of resignation in accordance with
this Section 5.6.
(e) if no Successor Property Trustee or Successor Delaware Trustee shall
have been appointed and accepted appointment as provided in this
Section 5.6 within 60 days after delivery to the Sponsor and the
Trust of an instrument of resignation, the resigning Property
Trustee or Delaware Trustee, as
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applicable, may petition any court of competent jurisdiction for
appointment of a Successor Property Trustee or Successor Delaware
Trustee. Such court may thereupon, after causing such notice to be
given, if any, as it may deem proper and prescribe, appoint a
Successor Property Trustee or Successor Delaware Trustee, as the
case may be.
SECTION 5.7 VACANCIES AMONG TRUSTEES.
If a Trustee ceases to hold office for any reason and the number of Trustees is
not reduced pursuant to Section 5.1, or if the number of Trustees is increased
pursuant to Section 5.1, a vacancy shall occur. A resolution certifying the
existence of such vacancy by a majority of the Regular Trustees shall be
conclusive evidence of the existence of such vacancy. The vacancy shall be
filled with a Trustee appointed in accordance with Section 5.6.
SECTION 5.8 EFFECT OF VACANCIES.
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee shall
not operate to annul the Trust. Whenever a vacancy in the number of Regular
Trustees shall occur, until such vacancy is filled by the appointment of a
Regular Trustee in accordance with Section 5.6, the Regular Trustees in office,
regardless of their number, shall have all the powers granted to the Regular
Trustees and shall discharge all the duties imposed upon the Regular Trustees by
this Declaration.
SECTION 5.9 MEETINGS.
Meetings of the Regular Trustees shall be held from time to time upon the call
of any Regular Trustee. Regular meetings of the Regular Trustees may be held at
a time and place fixed by resolution of the Regular Trustees. Notice of any
in-person meetings of the Regular Trustees shall be hand delivered or otherwise
delivered in writing (including by facsimile, with a hard copy by overnight
courier) not less than 48 hours before such meeting. Notice of any telephonic
meetings of the Regular Trustees or any committee thereof shall be hand
delivered or otherwise delivered in writing (including by facsimile, with a hard
copy by overnight courier) not less than 24 hours before a meeting. Notices
shall contain a brief statement of the time, place and anticipated purposes of
the meeting. The presence (whether in person or by telephone) of a Regular
Trustee at a meeting shall constitute a waiver of notice of such meeting except
where a Regular Trustee attends a meeting for the express purpose of objecting
to the transaction of any activity on the ground that the meeting has not been
lawfully called or convened. Unless provided otherwise in this Declaration, any
action of the Regular Trustees may be taken at a meeting by vote of a majority
of the Regular Trustees present (whether in person or by telephone) and eligible
to vote with respect to such matter, provided that a Quorum is present, or
without a meeting by the unanimous written consent of the Regular Trustees.
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SECTION 5.10 DELEGATION OF POWER.
(a) Any Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of
21 his or her power for the purpose of executing any documents
contemplated in Section 3.6, including any registration statement or
amendment thereto filed with the Commission, or making any other
governmental filing; and
(b) the Regular Trustees shall have power to delegate from time to time
to such of their number or to officers of the Trust the doing of
such things and the execution of such instruments either in the name
of the Trust or the names of the Regular Trustees or otherwise as
the Regular Trustees may deem expedient, to the extent such
delegation is not prohibited by applicable law or contrary to the
provisions of the Trust, as set forth herein.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 DISTRIBUTIONS.
Holders shall receive Distributions in accordance with the applicable terms of
the relevant Holder's Securities. Distributions shall be made on the Preferred
Securities and the Common Securities in accordance with the preferences set
forth in their respective terms. If and to the extent that the Debenture Issuer
makes a payment of interest (including Compounded Interest (as defined in the
Indenture)) and Additional Interest (as defined in the Indenture), premium of
and principal on the Debentures held by the Property Trustee (the amount of any
such payment being a "Payment Amount"), the Property Trustee shall and is
directed, to the extent funds are legally available for that purpose, to make a
distribution (a "Distribution") of the Payment Amount to Holders.
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 GENERAL PROVISIONS REGARDING SECURITIES.
(a) The Regular Trustees shall on behalf of the Trust issue one class of
preferred securities representing undivided beneficial interests in
the assets of the Trust having such terms as are set forth in
Exhibit A and incorporated herein by reference (the "Preferred
Securities") and one class of common securities representing
undivided beneficial interests in the assets of the Trust having
such terms as are set forth in Exhibit A (the "Common Securities").
The Trust
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shall have no securities or other interests in the assets of the
Trust other than the Preferred Securities and the Common Securities.
(b) The Certificates shall be signed on behalf of the Trust by the
Regular Trustees (or if there are more than two Regular Trustees by
any two of the Regular Trustees). Such signatures may be the manual
or facsimile signatures of the present or any future Regular
Trustee. Typographical and other minor errors or defects in any
such reproduction of any such signature shall not affect the
validity of any Certificate. In case any Regular Trustee of the
Trust who shall have signed any of the Securities shall cease to be
such Regular Trustee before the Certificates so signed shall be
delivered by the Trust, such Certificates nevertheless may be
delivered as though the Person who signed such Certificates had not
ceased to be such Regular Trustee; and any Certificate may be signed
on behalf of the Trust by such Persons who, at the actual date of
execution of such Security, shall be the Regular Trustees of the
Trust, although at the date of the execution and delivery of the
Declaration any such Person was not such a Regular Trustee.
Certificates shall be printed, lithographed or engraved or may be
produced in any other manner as is reasonably acceptable to the
Regular Trustees, as evidenced by their execution thereof, and may
have such letters, numbers or other marks of identification or
designation and such legends or endorsements as the Regular Trustees
may deem appropriate, or as may be required to comply with any law
or with any rule or regulation of any stock exchange on which
Securities may be listed, or to conform to usage.
(c) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the
Trust and shall not constitute a loan to the Trust.
(d) Upon issuance of the Securities as provided in this Declaration, the
Securities so issued shall be deemed to be validly issued, fully
paid and non-assessable.
(e) Every Person, by virtue of having become a Holder or a Preferred
Security Beneficial Owner in accordance with the terms of this
Declaration, shall be deemed to have expressly assented and agreed
to the terms of, and shall be bound, by this Declaration, the
Preferred Securities Guarantee and the Indenture.
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 TERMINATION OF TRUST.
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(a) The Trust shall terminate:
(i) upon the bankruptcy of the Holder of the Common Securities,
the Sponsor or the Debenture Issuer;
(ii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Holder of the Common
Securities, the Sponsor or the Debenture Issuer, the filing of
a certificate of cancellation with respect to the Trust or the
revocation of the charter of the Holder of the Common
Securities, the Sponsor or the Debenture Issuer and the
expiration of 90 days after the date of revocation without a
reinstatement thereof;
(iii) upon the entry of a decree of judicial dissolution of the
Holder of the Common Securities, the Sponsor, the Debenture
Issuer or the Trust;
(iv) when all of the Securities shall have been called for
redemption and the amounts necessary for redemption thereof
shall have been paid to the Holders in accordance with the
terms of the Securities;
(v) upon the occurrence and continuation of a Special Event
pursuant to which the Trust shall have been dissolved in
accordance with the terms of the Securities and all of the
Debentures endorsed thereon shall have been distributed to the
Holders of Securities in exchange for all of the Securities;
or
(vi) before the issuance of any Securities, with the consent of all
of the Regular Trustees and the Sponsor; and
(b) as soon as is practicable after the occurrence of an event referred
to in Section 8.1(a), the Trustees shall file a certificate of
cancellation with the Secretary of State of the State of Delaware;
and
(c) the provisions of Section 3.9 and Article X shall survive the
termination of the Trust.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 TRANSFER OF SECURITIES.
(a) Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this
Declaration and in the terms of the
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Securities. Any transfer or purported transfer of any Security not
made in accordance with this Declaration shall be null and void;
(b) subject to this Article IX, Preferred Securities shall be freely
transferable; and
(c) subject to this Article IX, the Sponsor and any Related Party may
only transfer Common Securities to the Sponsor or a Related Party of
the Sponsor; provided that, any such transfer is subject to the
condition precedent that the transferor obtain the written opinion
of nationally recognized independent counsel experienced in such
matters that such transfer would not cause more than an
insubstantial risk that:
(i) the Trust would be classified for United States federal income
tax purposes as an association taxable as a corporation or a
partnership and each Holder of Securities would not be treated
as owning an undivided beneficial interest in the Debentures;
and
(ii) the Trust or the transferree would be an Investment Company or
would be controlled by an Investment Company.
SECTION 9.2 TRANSFER OF CERTIFICATES.
The Regular Trustees shall provide for the registration of Certificates and of
transfers of Certificates, which will be effected without charge but only upon
payment (with such indemnity as the Regular Trustees may require) in respect of
any tax or other government charges which may be imposed in relation to it.
Upon surrender for registration of transfer of any Certificate, the Regular
Trustees shall cause one or more new Certificates to be issued in the name of
the designated transferee or transferees. Every Certificate surrendered for
registration of transfer shall be accompanied by a written instrument of
transfer in form satisfactory to the Regular Trustees duly executed by the
Holder or such Holder's attorney duly authorized in writing. Each Certificate
surrendered for registration of transfer shall be canceled by the Regular
Trustees. A transferee of a Certificate shall be entitled to the rights and
subject to the obligations of a Holder hereunder upon the receipt by such
transferee of a Certificate. By acceptance of a Certificate, each transferee
shall be deemed to have agreed to be bound by this Declaration and the documents
incorporated by reference herein.
SECTION 9.3 DEEMED SECURITY HOLDERS.
The Trustees may treat the Person in whose name any Certificate shall be
registered on the books and records of the Trust as the sole holder of such
Certificate and of the Securities represented by such Certificate for purposes
of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Certificate or in the Securities represented by such
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Certificate on the part of any Person, whether or not the Trust shall have
actual or other notice thereof.
SECTION 9.4 BOOK ENTRY INTERESTS.
Unless otherwise specified in the terms of the Preferred Securities, the
Preferred Securities Certificates, on original issuance, will be issued in the
form of one or more, fully registered, global Preferred Security Certificates
(each a "Global Certificate"), to be delivered to DTC, the initial Clearing
Agency, by, or on behalf of, the Trust. Such Global Certificates shall
initially be registered on the books and records of the Trust in the name of
Cede & Co., the nominee of DTC, and no Preferred Security Beneficial Owner will
receive a definitive Preferred Security Certificate representing such Preferred
Security Beneficial Owner's interests in such Global Certificates, except as
provided in Section 9.7. Unless and until definitive, fully registered
Preferred Security Certificates (the "Definitive Preferred Security
Certificates") have been issued to the Preferred Security Beneficial Owners
pursuant to Section 9.7:
(a) the provisions of this Section 9.4 shall be in full force and
effect;
(b) the Trust and the Trustees shall be entitled to deal with the
Clearing Agency for all purposes of this Declaration (including the
payment of Distributions on the Global Certificates and receiving
approvals, votes or consents hereunder) as the Holder of the
Preferred Securities and the sole holder of the Global Certificates
and shall have no obligation to the Preferred Security Beneficial
Owners;
(c) to the extent that the provisions of this Section 9.4 conflict with
any other provisions of this Declaration, the provisions of this
Section 9.4 shall control; and
(d) the rights of the Preferred Security Beneficial Owners shall be
exercised only through the Clearing Agency and shall be limited to
those established by law and agreements between such Preferred
Security Beneficial Owners and the Clearing Agency and/or the
Clearing Agency Participants and receive and transmit payments of
Distributions on the Global Certificates to such Clearing Agency
Participants. DTC will make book entry transfers among the Clearing
Agency Participants.
SECTION 9.5 NOTICES TO CLEARING AGENCY.
Whenever a notice or other communication to the Preferred Security Holders is
required under this Declaration, unless and until Definitive Preferred Security
Certificates shall have been issued to the Preferred Security Beneficial Owners
pursuant to Section 9.7, the Regular Trustees shall give all such notices and
communications specified herein to be given to the
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Preferred Security Holders to the Clearing Agency, and shall have no notice
obligations to the Preferred Security Beneficial Owners.
SECTION 9.6 APPOINTMENT OF SUCCESSOR CLEARING AGENCY.
If any Clearing Agency elects to discontinue its services as securities
depositary with respect to the Preferred Securities, the Regular Trustees may,
in their sole discretion, appoint a successor Clearing Agency with respect to
such Preferred Securities.
SECTION 9.7 DEFINITIVE PREFERRED SECURITY CERTIFICATES.
If:
(a) a Clearing Agency elects to discontinue its services as securities
depositary with respect to the Preferred Securities and a successor
Clearing Agency is not appointed within 90 days after such
discontinuance pursuant to Section 9.6; or
(b) the Regular Trustees elect after consultation with the Sponsor to
terminate the book entry system through the Clearing Agency with
respect to the Preferred Securities,
then:
(c) Definitive Preferred Security Certificates shall be prepared by the
Regular Trustees on behalf of the Trust with respect to such
Preferred Securities; and
(d) upon surrender of the Global Certificates by the Clearing Agency,
accompanied by registration instructions, the Regular Trustees shall
cause Definitive Certificates to be delivered to Preferred Security
Beneficial Owners in accordance with the instructions of the
Clearing Agency. Neither the Trustees nor the Trust shall be liable
for any delay in delivery of such instructions and each of them may
conclusively rely on and shall be protected in relying on, said
instructions of the Clearing Agency. The Definitive Preferred
Security Certificates shall be printed, lithographed or engraved or
may be produced in any other manner as is reasonably acceptable to
the Regular Trustees, as evidenced by their execution thereof, and
may have such letters, numbers or other marks of identification or
designation and such legends or endorsements as the Regular Trustees
may deem appropriate, or as may be required to comply with any law
or with any rule or regulation made pursuant thereto or with any
rule or regulation of any stock exchange on which Preferred
Securities may be listed, or to conform to usage.
SECTION 9.8 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
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If:
(a) any mutilated Certificates should be surrendered to the Regular
Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate;
and
(b) there shall be delivered to the Regular Trustees such security or
indemnity as may be required by them to keep each of them harmless.
then:
In the absence of notice that such Certificate shall have been acquired by a
bona fide purchaser, any two Regular Trustees on behalf of the Trust shall
execute and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like denomination.
In connection with the issuance of any new Certificate under this Section 9.8,
the Regular Trustees may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection therewith.
Any duplicate Certificate issued pursuant to this Section shall constitute
conclusive evidence of an ownership interest in the relevant Securities, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS OF
SECURITIES, TRUSTEES AND OTHERS
SECTION 10.1 LIABILITY.
(a) Except as expressly set forth in this Declaration, the Preferred
Securities Guarantee, the Common Securities Guarantee and the terms
of the Securities, the Sponsor shall not be:
(i) personally liable for the return of any portion of the capital
contributions (or any return thereon) of the Holders of the
Securities which shall be made solely from assets of the
Trust; and
(ii) required to pay to the Trust or to any Holder of Securities
any deficit upon dissolution of the Trust or otherwise; and
(b) Pursuant to Section 3803(a) of the Business Trust Act, the Holder of
the Common Securities shall be liable for all of the debts and
obligations of the Trust (other than with respect to the Securities)
to the extent not satisfied out of the Trust's assets.
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(c) Pursuant to Section 3803(a) of the Business Trust Act, the Holders
of the Preferred Securities shall be entitled to the same limitation
of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law
of the State of Delaware.
SECTION 10.2 EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person in good faith on
behalf of the Trust and in a manner such Indemnified Person
reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law,
except that an Indemnified Person shall be liable for any such loss,
damage or claim incurred by reason of such Indemnified Person's
gross negligence (or, in the case of the Property Trustee, except as
otherwise set forth in Section 3.9) or willful misconduct with
respect to such acts or omissions; and
(b) an Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any Person
as to matters the Indemnified Person reasonably believes are within
such other Person's professional or expert competence and who has
been selected with reasonable care by or on behalf of the Trust,
including information, opinions, reports or statements as to the
value and amount of the assets, liabilities, profits, losses, or any
other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Securities might properly be paid.
SECTION 10.3 FIDUCIARY DUTY.
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto
to the Trust or to any other Covered Person, an Indemnified Person
acting under this Declaration shall not be liable to the Trust or to
any other Covered Person for its good faith reliance on the
provisions of this Declaration. The provisions of this Declaration,
to the extent that they restrict the duties and liabilities of an
Indemnified Person otherwise existing at law or in equity (other
than the duties imposed on the Property Trustee under the Trust
Indenture Act), are agreed by the parties hereto to replace such
other duties and liabilities of such Indemnified Person;
(b) unless otherwise expressly provided herein:
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(i) whenever a conflict of interest exists or arises between an
Indemnified Person and any Covered Person; or
(ii) whenever this Declaration or any other agreement contemplated
herein or therein provides that an Indemnified Person shall
act in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take
such action or provide such terms, considering in each case the
relative interest of each party (including its own interest) to such
conflict, agreement, transaction or situation and the benefits and
burdens relating to such interests, any customary or accepted
industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the
Indemnified Person, the resolution, action or term so made, taken or
provided by the Indemnified Person shall not constitute a breach of
this Declaration or any other agreement contemplated herein or of
any duty or obligation of the Indemnified Person at law or in equity
or otherwise; and
(c) whenever in this Declaration an Indemnified Person is permitted or
required to make a decision
(i) in its "discretion" or under a grant of similar authority, the
Indemnified Person shall be entitled to consider such
interests and factors as it desires, including its own
interests, and shall have no duty or obligation to give any
consideration to any interest of or factors affecting the
Trust or any other Person; or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express standard and
shall not be subject to any other or different standard imposed by
this Declaration or by applicable law.
SECTION 10.4 INDEMNIFICATION.
(a) To the fullest extent permitted by applicable law, the Sponsor shall
indemnify and hold harmless each Indemnified Person from and against
any loss, damage, liability, tax, penalty, expense or claim of any
kind or nature whatsoever incurred by such Indemnified Person by
reason of the creation, operation or termination of the Trust or any
act or omission performed or omitted by such Indemnified Person in
good faith on behalf of the Trust and in a manner such Indemnified
Person reasonably believed to be within the scope of authority
conferred on such Indemnified Person by this Declaration,
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except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such
Indemnified Person by reason of gross negligence (or, in the case of
the Property Trustee, except as otherwise set forth in Section 3.9)
or willful misconduct with respect to such acts or omissions; and
(b) to the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by an Indemnified Person in
defending any claim, demand, action, suit or proceeding shall, from
time to time, be advanced by the Sponsor prior to the final
disposition of such claim, demand, action, suit or proceeding upon
receipt by the Sponsor of an undertaking by or on behalf of the
Indemnified Person to repay such amount if it shall be determined
that the Indemnified Person is not entitled to be indemnified as
authorized in Section 10.4(a).
SECTION 10.5 OUTSIDE BUSINESSES.
Any Covered Person, the Sponsor, the Debenture Issuer, the Delaware Trustee and
the Property Trustee may engage in or possess an interest in other business
ventures of any nature or description, independently or with others, similar or
dissimilar to the business of the Trust, and the Trust and the Holders of
Securities shall have no rights by virtue of this Declaration in and to such
independent ventures or the income or profits derived therefrom and the pursuit
of any such venture, even if competitive with the business of the Trust, shall
not be deemed wrongful or improper. No Covered Person, the Sponsor, the
Debenture Issuer, the Delaware Trustee, or the Property Trustee shall be
obligated to present any particular investment or other opportunity to the Trust
even if such opportunity is of a character that, if presented to the Trust,
could be taken by the Trust, and any Covered Person, the Sponsor, the Debenture
Issuer, the Delaware Trustee and the Property Trustee shall have the right to
take for its own account (individually or as a partner or fiduciary) or to
recommend to others any such particular investment or other opportunity. Any
Covered Person, the Delaware Trustee and the Property Trustee may engage or be
interested in any financial or other transaction with the Sponsor or any
Affiliate of the Sponsor, or may act as depositary for, trustee or agent for, or
act on any committee or body of holders of, securities or other obligations of
the Sponsor or its Affiliates.
ARTICLE XI
ACCOUNTING
SECTION 11.1 FISCAL YEAR.
The fiscal year ("Fiscal Year") of the Trust shall be the calendar year, or such
other year as is required by the Code.
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SECTION 11.2 CERTAIN ACCOUNTING MATTERS.
(a) At all times during the existence of the Trust, the Regular Trustees
shall keep, or cause to be kept, full books of account, records and
supporting documents, which shall reflect in reasonable detail, each
transaction of the Trust. The books of account shall be maintained
on the accrual method of accounting, in accordance with generally
accepted accounting principles, consistently applied. The Trust
shall use the accrual method of accounting for United States federal
income tax purposes. The books of account and the records of the
Trust shall be examined by and reported upon as of the end of each
Fiscal Year by a firm of independent certified public accountants
selected by the Regular Trustees;
(b) the Regular Trustees shall cause to be prepared and delivered to
each of the Holders of Securities, within 90 days after the end of
each Fiscal Year of the Trust, annual financial statements of the
Trust, including a balance sheet of the Trust as of the end of such
Fiscal Year, and the related statements of income or loss;
(c) the Regular Trustees shall cause to be duly prepared and delivered
to each of the Holders of Securities any United States federal
income tax information statement required by the Code, containing
such information with regard to the Securities held by each Holder
as is required by the Code and the Treasury Regulations.
Notwithstanding any right under the Code to deliver any such
statement at a later date, the Regular Trustees shall endeavor to
deliver all such statements within 30 days after the end of each
Fiscal Year of the Trust; and
(d) the Regular Trustees shall cause to be duly prepared and filed with
the appropriate taxing authority an annual United States federal
income tax return on such form as is required by United States
federal income tax law, and any other annual income tax returns
required to be filed by the Regular Trustees on behalf of the Trust
with any state or local taxing authority.
SECTION 11.3 BANKING.
The Trust shall maintain one or more bank accounts in the name and for the sole
benefit of the Trust; provided, however, that all payments of funds in respect
of the Debentures held by the Property Trustee shall be made directly to the
Property Trustee Account and no other funds of the Trust shall be deposited in
the Property Trustee Account. The sole signatories for such accounts shall be
designated by the Regular Trustees; provided, however, that the Property Trustee
shall designate the sole signatories for the Property Trustee Account.
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SECTION 11.4 WITHHOLDING.
The Trust and the Regular Trustees shall comply with all withholding
requirements under United States federal, state and local law. The Trust shall
request, and the Holders shall provide to the Trust, such forms or certificates
as are necessary to establish an exemption from withholding with respect to each
Holder, and any representations and forms as shall reasonably be requested by
the Trust to assist it in determining the extent of, and in fulfilling, its
withholding obligations. The Regular Trustees shall file required forms with
applicable jurisdictions and, unless an exemption from withholding is properly
established by a Holder, shall remit amounts withheld with respect to the Holder
to applicable jurisdictions. To the extent that the Trust is required to
withhold and pay over any amounts to any authority with respect to distributions
or allocations to any Holder, the amount withheld shall be deemed to be a
distribution in the amount of the withholding to the Holder. In the event of
any claimed overwithholding, to the fullest extent permitted by law, Holders
shall be limited to an action against the applicable jurisdiction. If the
amount required to be withheld was not withheld from actual Distributions made,
the Trust may reduce subsequent Distributions by the amount of such withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 AMENDMENTS.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may be amended
by, and only by, a written instrument approved and executed by the
Regular Trustees (or, if there are more than two Regular Trustees a
majority of the Regular Trustees); provided, however, that:
(i) no amendment shall be made, and any such purported amendment
shall be void and ineffective, to the extent the result
thereof would be to
(A) cause the Trust to be characterized for purposes of
United States federal income taxation as an association
taxable as a corporation or a partnership and each
Holder of Securities not to be treated as owning an
undivided beneficial interest in the Debentures;
(B) affect the powers, rights, duties, obligations or
immunities of the Property Trustee or the Delaware
Trustee (unless such amendment is consented to in
writing by the Property Trustee or the Delaware Trustee,
as the case may be); or
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(C) cause the Trust to be deemed an Investment Company that
is required to be registered under the Investment
Company Act;
(ii) at such time after the Trust has issued any Securities that
remain outstanding, any amendment that would materially
adversely affect the rights, privileges or preferences of any
Holder of Securities may be effected only with such additional
requirements as may be set forth in the terms of such
Securities;
(iii) Section 9.1(c) and this Section 12.1 shall not be amended
without the consent of all of the Holders of the Securities;
(iv) Article IV shall not be amended without the consent of the
Holders of a Majority in liquidation amount of the Common
Securities; and
(v) the rights of the holders of the Common Securities under
Article V to increase or decrease the number of, and appoint
and remove Trustees shall not be amended without the consent
of the Holders of a Majority in liquidation amount of the
Common Securities (except to the extent such amendment relates
to the Special Regular Trustee, in which case such amendment
may only be made in accordance with the terms of the
Preferred Securities).
(b) Notwithstanding Section 12.1(a)(ii), this Declaration may be amended
without the consent of the Holders of the Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Declaration that
may be defective or inconsistent with any other provision of
this Declaration;
(iii) add to the covenants, restrictions or obligations of the
Sponsor; and
(iv) conform to any change in Rule 3a-7 or written change in
interpretation or application of Rule 3a-7 by any legislative
body, court, government agency or regulatory authority which
amendment does not have a material adverse effect on the
right, preferences or privileges of the Holders.
SECTION 12.2 MEETINGS OF THE HOLDERS OF SECURITIES; ACTION BY WRITTEN
CONSENT.
(a) Meetings of the Holders of any class of Securities may be called at
any time by the Regular Trustees (or as provided in the terms of the
Securities) to consider and act on any matter on which Holders of
such class of Securities
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are entitled to act under the terms of this Declaration, the terms
of the Securities or the rules of any stock exchange on which the
Preferred Securities are listed or admitted for trading. The
Regular Trustees shall call a meeting of the Holders of such class,
if directed to do so by the Holders of at least 10% in liquidation
amount of such class of Securities. Such direction shall be given
by delivering to the Regular Trustees one or more calls in a writing
stating that the signing Holders of Securities wish to call a
meeting and indicating the general or specific purpose for which the
meeting is to be called. Any Holders of Securities calling a
meeting shall specify in writing the Certificates held by the
Holders of Securities exercising the right to call a meeting and
only those specified shall be counted for purposes of determining
whether the required percentage set forth in the second sentence of
this paragraph has been met; and
(b) except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of
Holders of Securities:
(i) notice of any such meeting shall be given to all the Holders
of Securities having a right to vote thereat at least 7 days
and not more than 60 days before the date of such meeting.
Whenever a vote, consent or approval of the Holders of
Securities is permitted or required under this Declaration or
the rules of any stock exchange on which the Preferred
Securities are listed or admitted for trading, such vote,
consent or approval may be given at a meeting of the Holders
of Securities. Any action that may be taken at a meeting of
the Holders of Securities may be taken without a meeting if a
consent in writing setting forth the action so taken is signed
by the Holders of Securities owning not less than the minimum
amount of Securities in liquidation amount that would be
necessary to authorize or take such action at a meeting at
which all Holders of Securities having a right to vote thereon
were present and voting. Prompt notice of the taking of
action without a meeting shall be given to the Holders of
Securities entitled to vote who have not consented in writing.
The Regular Trustees may specify that any written ballot
submitted to the Holder for the purpose of taking any action
without a meeting shall be returned to the Trust within the
time specified by the Regular Trustees;
(ii) each Holder of a Security may authorize any Person to act for
it by proxy on all matters in which a Holder of Securities is
entitled to participate, including waiving notice of any
meeting, or voting or participating at a meeting. No proxy
shall be valid after the expiration of 11 months from the date
thereof unless otherwise provided in the proxy. Every proxy
shall be revocable at the pleasure of the Holder of Securities
executing it. Except as otherwise provided herein, all
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matters relating to the giving, voting or validity of proxies
shall be governed by the General Corporation Law of the State
of Delaware relating to proxies, and judicial interpretations
thereunder, as if the Trust were a Delaware corporation and
the Holders of the Securities were stockholders of a Delaware
corporation;
(iii) each meeting of the Holders of the Securities shall be
conducted by the Regular Trustees or by such other Person that
the Regular Trustees may designate; and
(iv) unless the Business Trust Act, this Declaration, the terms of
the Securities or the listing rules of any stock exchange on
which the Preferred Securities are then listed or trading
otherwise provides, the Regular Trustees, in their sole
discretion, shall establish all other provisions relating to
meetings of Holders of Securities, including notice of the
time, place or purpose of any meeting at which any matter is
to be voted on by any Holders of Securities, waiver of any
such notice, action by consent without a meeting, the
establishment of a record date, quorum requirements, voting in
person or by proxy or any other matter with respect to the
exercise of any such right to vote.
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
SECTION 13.1 REPRESENTATIONS AND WARRANTIES OF PROPERTY TRUSTEE.
The Trustee which acts as initial Property Trustee represents and warrants to
the Trust and to the Sponsor at the date of this Declaration, and each Successor
Property Trustee represents and warrants to the Trust and the Sponsor at the
time of the Successor Property Trustee's acceptance of its appointment as
Property Trustee that:
(a) The Property Trustee is a Delaware banking corporation with trust
powers, duly organized, validly existing and in good standing under
the laws of the State of Delaware with trust power and authority to
execute and deliver, and to carry out and perform its obligations
under the terms of, the Declaration.
(b) The execution, delivery and performance by the Property Trustee of
the Declaration has been duly authorized by all necessary corporate
action on the part of the Property Trustee. The Declaration has
been duly executed and delivered by the Property Trustee, and it
constitutes a legal, valid and binding obligation of the Property
Trustee, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, reorganization, moratorium,
insolvency, and other similar laws affecting creditors' rights
generally and to
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general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is
considered in a proceeding in equity or at law).
(c) The execution, delivery and performance of the Declaration by the
Property Trustee does not conflict with or constitute a breach of
the Articles of Organization or By-laws of the Property Trustee.
(d) No consent, approval or authorization of, or registration with or
notice to, any state or federal banking authority is required for
the execution, delivery or performance by the Property Trustee, of
the Declaration.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 NOTICES.
All notices provided for in this Declaration shall be in writing, duly signed by
the party giving such notice, and shall be delivered, telecopied or mailed by
registered or certified mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at the
Trust's mailing address set forth below (or such other address as
the Trust may give notice of to the Holders of the Securities):
NWPS CAPITAL FINANCING I
33 Third Street, S.E.
Huron, South Dakota 57350
Attention: __________________
(b) if given to the Property Trustee or the Delaware Trustee, at the
mailing address set forth below (or such other address as the
Property Trustee or the Delaware Trustee may give notice of to the
Holders of the Securities):
WILMINGTON TRUST COMPANY
Rodney Square North
1100 N. Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
(c) if given to the Holder of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the
Holder of the Common Securities may give notice to the Trust):
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NORTHWESTERN PUBLIC SERVICE COMPANY
33 Third Street, S.E.
Huron, South Dakota 57350
Attention: __________________
(d) if given to any other Holder, at the address set forth on the books
and records of the Trust.
All such notices shall be deemed to have been given when received in person,
telecopied with receipt confirmed, or mailed by first class mail, postage
prepaid except that if a notice or other document is refused delivery or cannot
be delivered because of a changed address of which no notice was given, such
notice or other document shall be deemed to have been delivered on the date of
such refusal or inability to deliver.
SECTION 14.2 GOVERNING LAW.
This Declaration and the rights of the parties hereunder shall be governed by
and interpreted in accordance with the laws of the State of Delaware and all
rights and remedies shall be governed by such laws without regard to principles
of conflict of laws.
SECTION 14.3 INTENTION OF THE PARTIES.
It is the intention of the parties hereto that the Trust not be characterized
for United States federal income tax purposes as an association taxable as a
corporation or a partnership but rather, the Trust be characterized as a grantor
trust or otherwise in a manner that each Holder of Securities be treated as
owning an undivided beneficial interest in the Debentures. The provisions of
this Declaration shall be interpreted to further this intention of the parties.
SECTION 14.4 HEADINGS.
Headings contained in this Declaration are inserted for convenience of reference
only and do not affect the interpretation of this Declaration or any provision
hereof.
SECTION 14.5 SUCCESSORS AND ASSIGNS
Whenever in this Declaration any of the parties hereto is named or referred to,
the successors and assigns of such party shall be deemed to be included, and all
covenants and agreements in this Declaration by the Sponsor and the Trustees
shall bind and inure to the benefit of their respective successors and assigns,
whether so expressed.
SECTION 14.6 PARTIAL ENFORCEABILITY.
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If any provision of this Declaration, or the application of such provision to
any Person or circumstance, shall be held invalid, the remainder of this
Declaration, or the application of such provision to Persons or circumstances
other than those to which it is held invalid, shall not be affected thereby.
SECTION 14.7 COUNTERPARTS.
This Declaration may contain more than one counterpart of the signature page and
this Declaration may be executed by the affixing of the signature of each of the
Trustees to one of such counterpart signature pages. All of such counterpart
signature pages shall be read as though one, and they shall have the same force
and effect as though all of the signers had signed a single signature page.
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IN WITNESS WHEREOF, the undersigned has caused these presents to be executed as
of the day and year first above written.
NORTHWESTERN PUBLIC SERVICE COMPANY
as Sponsor
By:
-------------------------------------------
Name:
Title:
NWPS CAPITAL FINANCING I
By:
-------------------------------------------
Merle D. Lewis, as Trustee
By:
-------------------------------------------
Richard R. Hylland, as Trustee
WILMINGTON TRUST COMPANY
as Delaware Trustee and Property Trustee
By:
-------------------------------------------
Name:
Title:
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EXHIBIT A
TERMS OF SECURITIES
TERMS OF
_____% TRUST PREFERRED CAPITAL SECURITIES
_____% TRUST COMMON CAPITAL SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration of Trust, dated
as of __________, 1995 (as amended from time to time, the "Declaration"), the
designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities and the Common Securities are set out
below (each capitalized term used but not defined herein has the meaning set
forth in the Declaration or, if not defined in such Declaration, as defined in
the Prospectus referred to below):
1. DESIGNATION AND NUMBER.
(a) "Preferred Securities." Preferred Securities of the Trust with an
aggregate liquidation amount with respect to the assets of the Trust
of $_____ million ($__________) and a liquidation amount with
respect to the assets of the Trust of $25 per Preferred Security,
are hereby designated for the purposes of identification only as
"_____% Trust Preferred Capital Securities" (the "Preferred
Securities"). The Preferred Security Certificates evidencing the
Preferred Securities shall be substantially in the form attached
hereto as Annex I, with such changes and additions thereto or
deletions therefrom as may be required by ordinary usage, custom or
practice or to conform to the rules of any stock exchange on which
the Preferred Securities are listed.
(b) "Common Securities." Common Securities of the Trust with an
aggregate liquidation amount with respect to the assets of the Trust
of $_____ million ($___________) and a liquidation amount with
respect to the assets of the Trust of $25 per Common Security, are
hereby designated for the purposes of identification only as "_____%
Trust Common Capital Securities" (the "Common Securities"). The
Common Security Certificates evidencing the Common Securities shall
be substantially in the form attached hereto as Annex II, with such
changes and additions thereto or deletions therefrom as may be
required by ordinary usage, custom or practice.
2. DISTRIBUTIONS.
(a) Distributions payable on each Security will be fixed at a rate per
annum of _____% (the "Coupon Rate") of the stated liquidation amount
of $25 per Security, such rate being the rate of interest payable on
the Debentures to be
A-1
held by the Property Trustee. Distributions in arrears for more
than one quarter will bear interest thereon compounded quarterly at
the Coupon Rate (to the extent permitted by applicable law). The
term "Distributions" as used herein includes such periodic cash
distributions and any such interest payable unless otherwise stated.
A Distribution is payable only to the extent that payments are made
in respect of the Debentures held by the Property Trustee. The
amount of Distributions payable for any period will be computed for
any full quarterly Distribution period on the basis of a 360-day
year of twelve 30-day months, and for any period shorter than a full
quarterly Distribution period for which Distributions are computed,
Distributions will be computed on the basis of the actual number of
days elapsed in such a 30-day month.
(b) Distributions on the Securities will be cumulative, will accrue from
__________, 1995 and will be payable quarterly in arrears, on March
31, June 30, September 30, and December 31 of each year, commencing
on __________, 1995, except as otherwise described below. The
Debenture Issuer has the right under the Indenture to defer payments
of interest by extending the interest payment period from time to
time on the Debentures for a period not exceeding 20 consecutive
quarters (each an "Extension Period") and, as a consequence of such
Extension, Distributions will also be deferred. Despite such
deferral, quarterly Distributions will continue to accrue with
interest thereon (to the extent permitted by applicable law) at the
Coupon Rate compounded quarterly during any such Extension Period.
Prior to the termination of any such Extension Period, the Debenture
Issuer may further extend such Extension Period; provided that such
Extension Period together with all such previous and further
extensions thereof may not exceed 20 consecutive quarters. Payments
of accrued Distributions will be payable to Holders as they appear
on the books and records of the Trust on the first record date after
the end of the Extension Period. Upon the termination of any
Extension Period and the payment of all amounts then due, the
Debenture Issuer may commence a new Extension Period, subject to the
above requirements.
(c) Distributions on the Securities will be payable to the Holders
thereof as they appear on the books and records of the Trust on the
relevant record dates. While the Preferred Securities remain in
book-entry only form, the relevant record dates shall be one
Business Day prior to the relevant payment dates which payment dates
correspond to the interest payment dates on the Debentures. Subject
to any applicable laws and regulations and the provisions of the
Declaration, each such payment in respect of the Preferred
Securities will be made as described under the heading "Description
of the Preferred Securities -- Book-Entry Only Issuance -- The
Depository Trust Company" in the Prospectus Supplement dated
__________, 1995, to the Prospectus dated
A-2
__________, 1995 (together, the "Prospectus"), of the Trust included
in the Registration Statement on Form S-3 of the Sponsor, the
Debenture Issuer and the Trust. The relevant record dates for the
Common Securities, and, if the Preferred Securities shall not
continue to remain in book-entry only form, the relevant record
dates for the Preferred Securities, shall conform to the rules of
any securities exchange on which the securities are listed and, if
none, shall be selected by the Regular Trustees, which dates shall
be at least one Business Day but less than 60 Business Days before
the relevant payment dates, which payment dates correspond to the
interest payment dates on the Debentures. Distributions payable on
any Securities that are not punctually paid on any Distribution
payment date, as a result of the Debenture Issuer having failed to
make a payment under the Debentures will cease to be payable to the
Person in whose name such Securities are registered on the relevant
record date, and such defaulted Distribution will instead be payable
to the Person in whose name such Securities are registered on the
special record date or other specified date determined in accordance
with the Indenture. If any date on which Distributions are payable
on the Securities is not a Business Day, then payment of the
Distribution payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay) except that, if such
Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day, in each
case with the same force and effect as if made on such date.
(d) In the event that there is any money or other property held by or
for the Trust that is not accounted for hereunder, such property
shall be distributed Pro Rata (as defined herein) among the Holders
of the Securities.
3. LIQUIDATION DISTRIBUTION UPON DISSOLUTION.
In the event of any voluntary or involuntary dissolution, winding-up or
termination of the Trust, the Holders of the Securities on the date of the
dissolution, winding-up or termination, as the case may be, will be entitled to
receive out of the assets of the Trust available for distribution to Holders of
Securities after satisfaction of liabilities of creditors of the Trust an amount
equal to the aggregate of the stated liquidation amount of $25 per Security plus
accrued and unpaid Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"), unless, in connection with such
dissolution, winding up or termination, winding-up or termination, Debentures in
an aggregate principal amount equal to the aggregate stated liquidation amount
of such Securities, with an interest rate equal to the Coupon Rate of, and
bearing accrued and unpaid interest in an amount equal to the accrued and unpaid
Distributions on, such Securities, shall be distributed on a Pro Rata basis to
the Holders of the Securities in exchange for such Securities.
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If, upon any such dissolution, winding-up or termination of the Trust, the
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then the amounts payable directly by the Trust on the Securities
shall be paid on a Pro Rata basis.
4. REDEMPTION AND DISTRIBUTION.
(a) Upon the repayment of the Debentures in whole or in part, whether at
maturity or upon redemption, the proceeds from such repayment or
payment shall be thereupon applied to redeem Securities having an
aggregate liquidation amount equal to the aggregate principal amount
of the Debentures so repaid or redeemed at a redemption price of $25
per Security plus an amount equal to accrued and unpaid
Distributions thereon at the date of the redemption, payable in cash
(the "Redemption Price"). Holders will be given not less than 30
nor more than 60 days notice of such redemption.
(b) If fewer than all the outstanding Securities are to be so redeemed,
the Common Securities and the Preferred Securities will be redeemed
Pro Rata and the Preferred Securities to be redeemed will be as
described in Paragraph 4(f)(ii) below.
(c) If a Tax Event (as defined below) or an Investment Company Event (as
defined below) (each, a "Special Event"), shall occur and be
continuing, the Regular Trustees shall dissolve the Trust except in
the limited circumstances described below, and, after satisfaction
of liabilities to creditors of the Trust, cause Debentures held by
the Property Trustee, having an aggregate principal amount equal to
the aggregate stated liquidation amount of, with an interest rate
identical to the Coupon Rate of, and accrued and unpaid interest
equal to accrued and unpaid Distributions on and having the same
record date for payment as the Securities, to be distributed to the
Holders of the Securities in liquidation of such Holders' interests
in the Trust on a Pro Rata basis, within 90 days following the
occurrence of such Special Event (the "90-Day Period"); provided,
however, that in the case of the occurrence of a Tax Event, such
dissolution and distribution shall be conditioned on the Regular
Trustees' receipt of an opinion of a nationally recognized
independent tax counsel experienced in such matters (a "No
Recognition Opinion"), which opinion may rely on published revenue
rulings of the Internal Revenue Service, to the effect that the
Holders of the Securities will not recognize any gain or loss for
United States federal income tax purposes as a result of the
dissolution of the Trust and the distribution of Debentures; and
provided, further, that, if at the time there is available to the
Trust the opportunity to eliminate, within the 90-Day Period, the
Special Event by taking some ministerial action, such as filing a
form or making an election or pursuing some other similar reasonable
measure that has no adverse effect on the
A-4
Trust, the Debenture Issuer, the Sponsor or the Holders of the
Securities ("Ministerial Action"), the Trust will pursue such
Ministerial Action in lieu of dissolution and distribution as
described therein. Furthermore, if in the case of the occurrence of
a Tax Event, after receipt of a Dissolution Tax Opinion (as defined
below) by the Regular Trustees (i) the Debenture Issuer has received
an opinion (a "Redemption Tax Opinion") of a nationally recognized
independent tax counsel experienced in such matters that, as a
result of a Tax Event, there is more than an insubstantial risk that
the Debenture Issuer would be precluded from deducting the interest
on the Debentures for United States federal income tax purposes even
if the Debentures were distributed to the Holders of Securities in
liquidation of such Holders' interests in the Trust as described in
this paragraph 4(c), or (ii) the Regular Trustees shall have been
informed by such tax counsel that a No Recognition Opinion cannot be
delivered to the Trust, the Debenture Issuer shall have the right at
any time, upon not less than 30 nor more than 60 days notice, to
redeem the Debentures in whole or in part for cash within 90 days
following the occurrence of such Tax Event, and, following such
redemption, Securities with an aggregate liquidation amount equal to
the aggregate principal amount of the Debentures so redeemed shall
be redeemed by the Trust at the Redemption Price on a Pro Rata
basis; provided, however, that, if at the time there is available to
the Trust the opportunity to eliminate, within such 90-day period,
the Tax Event by taking some Ministerial Action, the Trust or the
Debenture Issuer will pursue such Ministerial Action in lieu of
redemption.
"Tax Event" means that the Regular Trustees shall have received an
opinion of a nationally recognized independent tax counsel
experienced in such matters (a "Dissolution Tax Opinion") to the
effect that on or after the date of the Prospectus Supplement, as a
result of (a) any amendment to, or change (including any announced
prospective change) in, the laws (or any regulations thereunder) of
the United States or any political subdivision or taxing authority
thereof or therein, (b) any amendment to or change in an
interpretation or application of any such laws or regulations by any
legislative body, court, governmental agency or regulatory authority
(including the enactment of any legislation and the publication of
any judicial decision or regulatory determination on or after the
date of the Prospectus relating to the Debentures), (c) any
interpretation or pronouncement that provides for a position with
respect to such laws or regulations that differs from the
theretofore generally accepted position, or (d) any action taken by
any governmental agency or regulatory authority, which amendment or
change is enacted, promulgated or effective, or which interpretation
or pronouncement is issued or announced, or which action is taken,
in each case on or after the date of the Prospectus relating to the
Debentures, there is more than an insubstantial risk that (i) the
Trust is or will be within 90 days of the date thereof, subject to
United States federal income tax with respect to interest
A-5
accrued or received on the Debentures, (ii) the Trust is, or will be
within 90 days of the date thereof, subject to more than a de
minimis amount of taxes, duties or other governmental charges, or
(iii) interest payable by the Debenture Issuer to the Trust on the
Debentures is not, or within 90 days of the date thereof will not
be, deductible, in whole or in part, by the Debenture Issuer for
United States federal income tax purposes.
"Investment Company Event" means that the Regular Trustees shall
have received an opinion of nationally recognized independent
counsel experienced in practice under the Investment Company Act of
1940, as amended (the "1940 Act"), that as a result of the
occurrence of a change in law or regulation by any legislative body,
court, governmental agency or regulatory authority (a "Change in
1940 Act Law"), the Trust is or will be considered an "investment
company" which is required to be registered under the 1940 Act,
which Change in 1940 Act Law becomes effective on or after the date
of the Prospectus relating to the Debentures. In case of any
uncertainty regarding an Investment Company Event, the good faith
determination of the Regular Trustees, based on the advice of
counsel, shall be conclusive.
On and from the date fixed by the Regular Trustees for any
distribution of Debentures and dissolution of the Trust: (i) the
Securities will no longer be deemed to be outstanding, (ii) The
Depository Trust Company (the "Depository") or its nominee (or any
successor Clearing Agency or its nominee), as the record Holder of
the Preferred Securities, will receive a registered global
certificate or certificates representing the Debentures to be
delivered upon such distribution and any certificates representing
Securities, except for certificates representing Preferred
Securities held by the Depository or its nominee (or any successor
Clearing Agency or its nominee), will be deemed to represent
beneficial interests in the Debentures having an aggregate principal
amount equal to the aggregate stated liquidation amount of, with an
interest rate identical to the Coupon Rate of, and accrued and
unpaid interest equal to accrued and unpaid Distributions, on such
Securities until such certificates are presented to the Debenture
Issuer or its agent for transfer or reissue.
(d) The Trust may not redeem fewer than all the outstanding Securities
unless all accrued and unpaid Distributions have been paid on all
Securities for all quarterly Distribution periods terminating on or
before the date of redemption.
(e) If the Debentures are distributed to holders of the Securities,
pursuant to the terms of the Indenture, the Debenture Issuer will
use its best efforts to have the Debentures listed on the New York
Stock Exchange or on such other
A-6
exchange as the Preferred Securities were listed immediately prior
to the distribution of the Debentures.
(f) "Redemption or Distribution Procedures."
(i) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Securities (a
"Redemption/Distribution Notice") will be given by the Trust
by mail to each Holder of Securities to be redeemed or
exchanged not fewer than 30 nor more than 60 days before the
date fixed for redemption or exchange thereof which, in the
case of a redemption, will be the date fixed for redemption of
the Debentures. For purposes of the calculation of the date
of redemption or exchange and the dates on which notices are
given pursuant to this paragraph 4(f)(i), a
Redemption/Distribution Notice shall be deemed to be given on
the day such notice is first mailed by first-class mail,
postage prepaid, to Holders of Securities. Each
Redemption/Distribution Notice shall be addressed to the
Holders of Securities at the address of each such Holder
appearing in the books and records of the Trust. No defect in
the Redemption/Distribution Notice or in the mailing of either
thereof with respect to any Holder shall affect the validity
of the redemption or exchange proceedings with respect to any
other Holder.
(ii) In the event that fewer than all the outstanding Securities
are to be redeemed, the Securities to be redeemed shall be
redeemed Pro Rata from each Holder of Preferred Securities, it
being understood that, in respect of Preferred Securities
registered in the name of and held of record by the Depository
(or any successor Clearing Agency) or any nominee, the
distribution of the proceeds of such redemption will be made
to such Clearing Agency Participant (or Person on whose behalf
such nominee holds such Securities) in accordance with the
procedures applied by such offering or nominee.
(iii) If Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice, which notice may only be
issued if the Debentures are redeemed as set out in this
paragraph 4 (which notice will be irrevocable), then (a) while
the Preferred Securities are in book-entry only form, with
respect to the Preferred Securities, by 12:00 noon, New York
City time, on the redemption date, provided that the Debenture
Issuer has paid the Property Trustee a sufficient amount of
cash in connection with the related redemption or maturity of
the Debentures, the Property Trustee will deposit irrevocably
with the Depositary (or successor Clearing Agency) funds
sufficient to pay the applicable Redemption Price with respect
to the Preferred
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Securities and will give the Depository irrevocable
instructions and authority to pay the Redemption Price to the
Holders of the Preferred Securities, and (b) with respect to
Preferred Securities issued in definitive form and Common
Securities, provided that the Debenture Issuer has paid the
Property Trustee a sufficient amount of cash in connection
with the related redemption or maturity of the Debentures, the
Property Trustee will pay the relevant Redemption Price to the
Holders of such Securities by check mailed to the address of
the relevant Holder appearing on the books and records of the
Trust on the redemption date. If a Redemption/ Distribution
Notice shall have been given and funds deposited as required,
if applicable, then immediately prior to the close of business
on the date of such deposit, or on the redemption date, as
applicable, distributions will cease to accrue on the
Securities so called for redemption and all rights of Holders
of such Securities so called for redemption will cease, except
the right of the Holders of such Securities to receive the
Redemption Price, but without interest on such Redemption
Price. Neither the Regular Trustees nor the Trust shall be
required to register or cause to be registered the transfer of
any Securities that have been so called for redemption. If
any date fixed for redemption of Securities is not a Business
Day, then payment of the Redemption Price payable on such date
will be made on the next succeeding day that is a Business Day
(and without any interest or other payment in respect of any
such delay) except that, if such Business Day falls in the
next calendar year, such payment will be made on the
immediately preceding Business Day, in each case with the same
force and effect as if made on such date fixed for redemption.
If payment of the Redemption Price in respect of any
Securities is improperly withheld or refused and not paid
either by the Property Trustee or by the Sponsor as guarantor
pursuant to the relevant Preferred Securities Guarantee or
Common Securities Guarantee, Distributions on such Securities
will continue to accrue from the original redemption date to
the actual date of payment, in which case the actual payment
date will be considered the date fixed for redemption for
purposes of calculating the Redemption Price.
(iv) Redemption/Distribution Notices shall be sent by the Regular
Trustees on behalf of the Trust to (a) in respect of the
Preferred Securities, the Depositary or its nominee (or any
successor Clearing Agency or its nominee) if the Global
Certificates have been issued or, if Definitive Preferred
Security Certificates have been issued, to the Holder thereof,
and (b) in respect of the Common Securities to the Holder
thereof.
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(v) Subject to the foregoing and applicable law (including,
without limitation, United States federal securities laws),
provided the acquiror is not the Holder of the Common
Securities or the obligor under the Indenture, the Sponsor or
any of its subsidiaries may at any time and from time to time
purchase outstanding Preferred Securities by tender, in the
open market or by private agreement.
5. VOTING RIGHTS -- PREFERRED SECURITIES.
(a) Except as provided under paragraphs 5(b) and 7 and as otherwise
required by law and the Declaration, the Holders of the Preferred
Securities will have no voting rights.
(b) If (i) the Trust fails to make Distributions in full on the
Preferred Securities for six consecutive quarterly Distribution
periods, or (ii) an Event of Default occurs and is continuing (each
of (i) and (ii) being an "Appointment Event"), then the Holders of
the Preferred Securities, acting as a single class, will be entitled
by the vote of a Majority in liquidation amount of the Preferred
Securities to appoint a Special Regular Trustee in accordance with
Section 5.6(a)(ii)(b) of the Declaration. Any Holder of Preferred
Securities (other than the Sponsor, or any Person directly or
indirectly controlling or controlled by or under direct or indirect
common control with the Sponsor) will be entitled to nominate any
Person to be appointed as Special Regular Trustee. For purposes of
determining whether the Trust has failed to make Distributions in
full for six consecutive quarterly Distribution periods,
Distributions shall be deemed to remain in arrears, notwithstanding
any payments in respect thereof, until full cumulative Distributions
have been or contemporaneously are paid with respect to all
quarterly Distribution periods terminating on or prior to the date
of payment of such cumulative Distributions. Not later than 30 days
after such right to appoint a Special Regular Trustee arises, the
Regular Trustees will convene a meeting for the purpose of
appointing a Special Regular Trustee. If the Regular Trustees fail
to convene such meeting within such 30-day period, the Holders of
10% in liquidation amount of the Preferred Securities will be
entitled to convene such meeting in accordance with Section 12.2 of
the Declaration. The record date for such meeting will be the close
of business on the Business Day that is one Business Day before the
day on which notice of the meeting is sent to the Holders. The
provisions of the Declaration relating to the convening and conduct
of the meetings of the Holders will apply with respect to any such
meeting.
A Special Regular Trustee may be removed without cause at any time
by vote of the Holders of a Majority in liquidation amount of the
Preferred Securities at a meeting of the Holders of the Preferred
Securities in accordance with
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Section 5.6(a)(ii)(b) of the Declaration. The Holders of 10% in
liquidation amount of the Preferred Securities will be entitled to
convene such a meeting in accordance with Section 12.2 of the
Declaration. The record date for such meeting will be the close of
business on the Business Day which is one Business Day before the
day on which the notice of meeting is sent to Holders.
Notwithstanding the appointment of a Special Regular Trustee, the
Debenture Issuer shall retain all rights under the Indenture,
including the right to extend the interest payment period on the
Debentures.
Subject to the requirements set forth in this paragraph, the Holders
of a majority in liquidation amount of the Preferred Securities,
voting separately as a class may direct the time, method, and place
of conducting any proceeding for any remedy available to the
Property Trustee, or exercising any trust or power conferred upon
the Property Trustee under the Declaration, including (i) directing
the time, method, place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power
conferred on the Property Trustee with respect to the Debentures,
(ii) waive any past default and its consequences that is waivable
under Section 513 of the Indenture, or (iii) exercise any right to
rescind or annul a declaration that the principal of all the
Debentures shall be due and payable, provided, however, that, where
a consent under the Indenture would require the consent or act of
the Holders of greater than a majority in principal amount of
Debentures affected thereby (a "Super Majority"), the Property
Trustee may only give such consent or take such action at the
direction of the Holders of at least the proportion in liquidation
amount of the Preferred Securities which the relevant Super Majority
represents of the aggregate principal amount of the Debentures
outstanding. The Property Trustee shall not revoke any action
previously authorized or approved by a vote of the Holders of the
Preferred Securities. Other than with respect to directing the
time, method and place of conducting any remedy available to the
Property Trustee or the Debenture Trustee as set forth above, the
Property Trustee shall not take any action in accordance with the
directions of the Holders of the Preferred Securities under this
paragraph unless the Property Trustee has obtained an opinion of tax
counsel to the effect that for the purposes of United States federal
income tax the Trust will not fail to be classified as a grantor
trust. If the Property Trustee fails to enforce its rights under
the Declaration, any Holder of Preferred Securities may, after a
period of 30 days has elapsed from such Holder's written request to
the Property Trustee to enforce such rights, institute a legal
proceeding directly against any Person to enforce the Property
Trustee's rights under the Declaration without first instituting a
legal proceeding against the Property Trustee or any other Person.
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Any approval or direction of Holders of Preferred Securities may be
given at a separate meeting of Holders of Preferred Securities
convened for such purpose, at a meeting of all of the Holders of
Securities in the Trust or pursuant to written consent. The Regular
Trustees will cause a notice of any meeting at which Holders of
Preferred Securities are entitled to vote, or of any matter upon
which action by written consent of such Holders is to be taken, to
be mailed to each Holder of record of Preferred Securities. Each
such notice will include a statement setting forth (i) the date of
such meeting or the date by which such action is to be taken, (ii) a
description of any resolution proposed for adoption at such meeting
on which such Holders are entitled to vote or of such matter upon
which written consent is sought and (iii) instructions for the
delivery of proxies or consents.
No vote or consent of the Holders of the Preferred Securities will
be required for the Trust to redeem and cancel Preferred Securities
or to distribute the Debentures in accordance with the Declaration
and the terms of the Securities.
Notwithstanding that Holders of Preferred Securities are entitled to
vote or consent under any of the circumstances described above, any
of the Preferred Securities that are owned by the Sponsor or any
Affiliate of the Sponsor shall not be entitled to vote or consent
and shall, for purposes of such vote or consent, be treated as if
they were not outstanding.
6. VOTING RIGHTS -- COMMON SECURITIES.
(a) Except as provided under paragraphs 6(b), 6(c) and 7, and as
otherwise required by law and the Declaration, the Holders of the
Common Securities will have no voting rights.
(b) The Holders of the Common Securities are entitled, in accordance
with Article V of the Declaration, to vote to appoint, remove or
replace any Trustee or to increase or decrease the number of
Trustees, subject to the exclusive right of the Holders of the
Preferred Securities to appoint, remove or replace a Special Regular
Trustee.
(c) Subject to Section 2.6 of the Declaration and only after the Event
of Default with respect to the Preferred Securities have been cured,
waived, or otherwise eliminated, and subject to the requirements of
the second to last sentence of this paragraph, the Holders of a
Majority in liquidation amount of the Common Securities, voting
separately as a class, may direct the time, method, and place of
conducting any proceeding for any remedy available to the Property
Trustee, or exercising any trust or power conferred upon the
Property Trustee under the Declaration, including (i) directing the
time,
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method, place of conducting any proceeding for any remedy available
to the Debenture Trustee, or exercising any trust or power conferred
on the Debenture Trustee with respect to the Debentures, (ii) waive
any past default and its consequences that is waivable under Section
606 of the Indenture, or (iii) exercise any right to rescind or
annul a declaration that the principal of all the Debentures shall
be due and payable, provided, however, that, where a consent or
action under the Indenture would require the consent or act of the
Holders of a Super Majority, the Property Trustee may only give such
consent or take such action at the direction of the Holders of at
least the proportion in liquidation amount of the Common Securities
which the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding. Pursuant to this
paragraph 6(c), the Property Trustee shall not revoke any action
previously authorized or approved by a vote of the Holders of the
Preferred Securities. Other than with respect to directing the
time, method and place of conducting any remedy available to the
Property Trustee or the Debenture Trustee as set forth above, the
Property Trustee shall not take any action in accordance with the
directions of the Holders of the Common Securities under this
paragraph unless the Property Trustee has obtained an opinion of tax
counsel to the effect that for the purposes of United States federal
income tax the Trust will not be classified as an association
taxable as a corporation or a partnership and that each Holder of
the Securities will be treated as owning an undivided beneficial
interest in the Debentures on account of such action. If the
Property Trustee fails to enforce its rights under the Declaration,
any Holder of Common Securities may, after a period of 30 days has
elapsed from such Holder's written request to the Property Trustee
to enforce such rights, institute a legal proceeding directly
against any Person to enforce the Property Trustee's rights under
the Declaration, without first instituting a legal proceeding
against the Property Trustee or any other Person.
Any approval or direction of Holders of Common Securities may be
given at a separate meeting of Holders of Common Securities convened
for such purpose, at a meeting of all of the Holders of Securities
in the Trust or pursuant to written consent. The Regular Trustees
will cause a notice of any meeting at which Holders of Common
Securities are entitled to vote, or of any matter upon which action
by written consent of such Holders is to be taken, to be mailed to
each Holder of record of Common Securities. Each such notice will
include a statement setting forth (i) the date of such meeting or
the date by which such action is to be taken, (ii) a description of
any resolution proposed for adoption at such meeting on which such
Holders are entitled to vote or of such matter upon which written
consent is sought and (iii) instructions for the delivery of proxies
or consents.
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No vote or consent of the Holders of the Common Securities will be
required for the Trust to redeem and cancel Common Securities or to
distribute the Debentures in accordance with the Declaration and the
terms of the Securities.
7. AMENDMENTS TO DECLARATION AND INDENTURE.
(a) In addition to any requirements under Section 12.1 of the
Declaration, if any proposed amendment to the Declaration provides
for, or the Regular Trustees otherwise propose to effect, (i) any
action that would materially adversely affect the powers,
preferences or special rights of the Securities, whether by way of
amendment to the Declaration or otherwise, or (ii) the dissolution,
winding-up or termination of the Trust, other than as described in
Section 8.1 of the Declaration, then the Holders of outstanding
Securities as a class, will be entitled to vote on such amendment or
proposal (but not on any other amendment or proposal) and such
amendment or proposal shall not be effective except with the
approval of the Holders of at least 66 2/3% in liquidation amount of
the Securities, voting together as a single class provided, however,
that, the rights of Holders of Preferred Securities under Article V
of the Declaration to appoint, remove or replace a Special Regular
Trustee shall not be amended without the consent of each Holder of
Preferred Securities, provided, further however, if any amendment or
proposal referred to in clause (i) above would materially adversely
affect only the Preferred Securities or the Common Securities, then
only the affected class will be entitled to vote on such amendment
or proposal and such amendment or proposal shall not be effective
except with the approval of 66 2/3% in liquidation amount of such
class of securities.
(b) In the event the consent of the Property Trustee as the holder of
the Debentures and the Preferred Securities Guarantee is required
under the Indenture with respect to any amendment, modification or
termination on the Indenture, the Debentures or the Preferred
Securities Guarantee, the Property Trustee shall request the
direction of the Holders of the Securities with respect to such
amendment, modification or termination and shall vote with respect
to such amendment, modification or termination as directed by a
Majority in liquidation amount of the Securities voting together as
a single class; provided, however, that where a consent under the
Indenture would require the consent of the Holders of a Super
Majority, the Property Trustee may only give such consent at the
direction of the Holders of at least the proportion in liquidation
amount of the Securities which the relevant Super Majority
represents of the aggregate principal amount of the Debentures
outstanding; provided, further, that the Property Trustee shall not
take any action in accordance with the directions of the Holders of
the Securities under this paragraph 7(b) unless the Property Trustee
has obtained an opinion of tax
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counsel to the effect that for the purposes of United States federal
income tax the Trust will not be classified as other than a grantor
trust.
8. PRO RATA.
A reference in these terms of the Securities to any payment, distribution or
treatment as being "Pro Rata" shall mean pro rata to each Holder of Securities
according to the aggregate liquidation amount of the Securities held by the
relevant Holder in relation to the aggregate liquidation amount of all
Securities outstanding unless, in relation to a payment, an Event of Default
under the Indenture has occurred and is continuing, in which case any funds
available to make such payment shall be paid first to each Holder of the
Preferred Securities pro rata according to the aggregate liquidation amount of
Preferred Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Preferred Securities outstanding, and only after
satisfaction of all amounts owed to the Holders of the Preferred Securities, to
each Holder of Common Securities pro rata according to the aggregate liquidation
amount of Common Securities held by the relevant Holder relative to the
aggregate liquidation amount of all Common Securities outstanding.
9. RANKING.
The Preferred Securities rank pari passu and payment thereon shall be made Pro
Rata with the Common Securities except that, where an Event of Default occurs
and is continuing under the Indenture in respect of the Debentures held by the
Property Trustee, the rights of Holders of the Common Securities to payment in
respect of Distributions and payments upon liquidation, redemption and otherwise
are subordinated to the rights to payment of the Holders of the Preferred
Securities.
10. LISTING.
The Regular Trustees shall use their best efforts to cause the Preferred
Securities to be listed for quotation on the New York Stock Exchange Limited.
11. ACCEPTANCE OF SECURITIES GUARANTEE AND INDENTURE.
Each Holder of Preferred Securities and Common Securities, by the acceptance
thereof, agrees to the provisions of the Preferred Securities Guarantee and the
Common Securities Guarantee, respectively, including the subordination
provisions therein and to the provisions of the Indenture.
12. NO PREEMPTIVE RIGHTS.
The Holders of the Securities shall have no preemptive rights to subscribe for
any additional securities.
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13. MISCELLANEOUS.
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration and the Preferred Securities
Guarantee and the Indenture to a Holder without charge on written request to the
Trust at its principal place of business.
These terms and the rights of the parties herewith shall be governed by and
interpreted in accordance with the laws of the State of Delaware and all rights
and remedies shall be governed by such laws without regard to principles of
conflict of laws.
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ANNEX I
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE, INSERT: This
Preferred Security is a Global Certificate within the meaning of the Declaration
hereinafter referred to and is registered in the name of The Depository Trust
Company (the "Depositary") or a nominee of the Depositary. This Preferred
Security is exchangeable for Preferred Securities registered in the name of a
person other than the Depositary or its nominee only in the limited
circumstances described in the Declaration and no transfer of this Preferred
Security (other than a transfer of this Preferred Security as a whole by the
Depositary to a nominee of the Depository or by a nominee of the Depository to
the Depositary or another nominee of the Depositary) may be registered except in
limited circumstances.
Unless this Preferred Security is presented by an authorized representative of
The Depository Trust Company (55 Water Street, New York) to the Trust or its
agent for registration of transfer, exchange or payment, and any Preferred
Security issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.]
Certificate Number Number of Preferred Securities
____________ ____________
CUSIP NO. __________
Certificate Evidencing Preferred Securities
of
NWPS CAPITAL FINANCING I
Preferred Securities.
(liquidation amount $25 per Preferred Security)
NWPS CAPITAL FINANCING I, a business trust formed under the laws of the State of
Delaware (the "Trust"), hereby certifies that _______________ (the "Holder") is
the registered owner of ________________ preferred securities of the Trust
representing undivided beneficial interests in the assets of the Trust
designated the _____% Trust Preferred Capital Securities (liquidation amount $25
per Preferred Security) (the "Preferred Securities"). The Preferred Securities
are transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer. The designation, rights, privileges, restrictions,
A-16
preferences and other terms and provisions of the Preferred Securities
represented hereby are issued and shall in all respects be subject to the
provisions of the Amended and Restated Declaration of Trust of the Trust dated
as of ___________, 1995, as the same may be amended from time to time (the
"Declaration"), including the designation of the terms of the Securities as set
forth in Exhibit A to the Declaration. Capitalized terms used herein but not
defined shall have the meaning given them in the Declaration. The Holder is
entitled to the benefits of the Preferred Securities Guarantee to the extent
provided therein. The Sponsor will provide a copy of the Declaration, the
Preferred Securities Guarantee and the Indenture to a Holder without charge upon
written request to the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the Declaration and is
entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal income tax
purposes, the Debentures as indebtedness and the Preferred Securities as
evidence of indirect beneficial ownership in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this day of
__________, 199 .
NWPS Capital Financing I
By:
-------------------------------
as Trustee
By:
-------------------------------
as Trustee
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate to:
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(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee) and irrevocably appoints
agent to transfer this Preferred Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date:
Signature:
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
CHI2:1630.1
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ANNEX II
Certificate Number Number of Common Securities
____________ ____________
Certificate Evidencing Common Securities
of
NWPS CAPITAL FINANCING I
Common Securities.
(liquidation amount $25 per Common Security)
NWPS CAPITAL FINANCING I, a business trust formed under the laws of the State of
Delaware (the "Trust"), hereby certifies that ____________ (the "Holder") is the
registered owner of ________ common securities of the Trust representing
undivided beneficial interests in the assets of the Trust designated the _____%
Trust Common Capital Securities (liquidation amount $25 per Common Security)
(the "Common Securities"). The Common Securities are transferable on the books
and records of the Trust, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in proper form for transfer.
The designation, rights, privileges, restrictions, preferences and other terms
and provisions of the Common Securities represented hereby are issued and shall
in all respects be subject to the provisions of the Amended and Restated
Declaration of Trust of the Trust dated as of ___________, 1995, as the same may
be amended from time to time (the "Declaration"), including the designation of
the terms of the Securities as set forth in Exhibit A to the Declaration.
Capitalized terms used herein but not defined shall have the meaning given them
in the Declaration.
The Holder is entitled to the benefits of the Common Securities Guarantee to the
extent provided therein. The Sponsor will provide a copy of the Declaration,
the Common Securities Guarantee and the Indenture to a Holder without charge
upon written request to the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the Declaration and is
entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat for United States federal income tax
purposes the Debentures as indebtedness and the Common Securities as evidence of
indirect beneficial ownership in the Debentures.
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IN WITNESS WHEREOF, the Trust has executed this certificate this day of
___________, 199 .
NWPS Capital Financing I
By:
-------------------------------
as Trustee
By:
-------------------------------
as Trustee
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common Security
Certificate to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee) and irrevocably appoints
agent to transfer this Common Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date:
Signature:
(Sign exactly as your name appears on the other side of this Common Security
Certificate)
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EXHIBIT B
SPECIMEN OF DEBENTURE
B-1
EXHIBIT C
UNDERWRITING AGREEMENT
C-1