FORM
OF
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
NWPS CAPITAL FINANCING III
NWPS CAPITAL FINANCING III
CROSS-REFERENCE TABLE FOR THE
AMENDED AND RESTATED DECLARATION OF TRUST
SECTION OF SECTION OF
TRUST INDENTURE AMENDED AND RESTATED
ACT OF 1939, AS AMENDED DECLARATION OF TRUST
Section 310(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3
(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.6
(a)(4). . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5.3(c)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.2(b)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.2(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.2(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.2(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.2(a)
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4, 3.6(j)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
(c)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . .2.4, 2.5
(c)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . .2.4, 2.5
(c)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . .2.4, 2.5
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.9, 3.10
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.7(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3.9(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3.9(b)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
Section 316(a) . . . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
(c) . . . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
Section 317(a)(1). . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3.8(h)
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.1(c)
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Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
a part of the Amended and Restated Declaration of Trust.
TABLE OF CONTENTS
ARTICLE I
Interpretation and Definitions
SECTION 1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Appointment Event . . . . . . . . . . . . . . . . . . . . . . . 2
Authorized Officer. . . . . . . . . . . . . . . . . . . . . . . 2
Book Entry Interest . . . . . . . . . . . . . . . . . . . . . . 2
Business Day. . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Trust Act. . . . . . . . . . . . . . . . . . . . . . . 2
Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Clearing Agency . . . . . . . . . . . . . . . . . . . . . . . . 2
Clearing Agency Participant . . . . . . . . . . . . . . . . . . 3
Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Common Security . . . . . . . . . . . . . . . . . . . . . . . . 3
Common Securities Guarantee . . . . . . . . . . . . . . . . . . 3
Common Security Certificate . . . . . . . . . . . . . . . . . . 3
Covered Person. . . . . . . . . . . . . . . . . . . . . . . . . 3
Debenture Issuer. . . . . . . . . . . . . . . . . . . . . . . . 3
Debenture Trustee . . . . . . . . . . . . . . . . . . . . . . . 3
Debentures. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Delaware Trustee. . . . . . . . . . . . . . . . . . . . . . . . 3
Definitive Preferred Security Certificates. . . . . . . . . . . 3
Direction . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Distribution. . . . . . . . . . . . . . . . . . . . . . . . . . 4
DTC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Exchange Act. . . . . . . . . . . . . . . . . . . . . . . . . . 4
Event of Default. . . . . . . . . . . . . . . . . . . . . . . . 4
Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Global Certificate. . . . . . . . . . . . . . . . . . . . . . . 4
Holder. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indemnified Person. . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Investment Company. . . . . . . . . . . . . . . . . . . . . . . 4
Investment Company Act. . . . . . . . . . . . . . . . . . . . . 4
Investment Company Event. . . . . . . . . . . . . . . . . . . . 4
Legal Action. . . . . . . . . . . . . . . . . . . . . . . . . . 5
List of Holders . . . . . . . . . . . . . . . . . . . . . . . . 5
Majority in Liquidation Amount of the Securities. . . . . . . . 5
Ministerial Action. . . . . . . . . . . . . . . . . . . . . . . 5
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . 5
Paying Agent. . . . . . . . . . . . . . . . . . . . . . . . . . 5
Person. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Preferred Securities Guarantee. . . . . . . . . . . . . . . . . 5
Preferred Security. . . . . . . . . . . . . . . . . . . . . . . 6
Preferred Security Beneficial Owner . . . . . . . . . . . . . . 6
Preferred Security Certificate. . . . . . . . . . . . . . . . . 6
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of this Declaration.
-i-
Property Trustee. . . . . . . . . . . . . . . . . . . . . . . . 6
Property Trustee Account. . . . . . . . . . . . . . . . . . . . 6
Quorum. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Regular Trustee . . . . . . . . . . . . . . . . . . . . . . . . 6
Related Party . . . . . . . . . . . . . . . . . . . . . . . . . 6
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . 6
Rule 3a-7 . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Securities Act . . . . . . . . . . . . . . . . . . . . . . . . 6
66- 2/3% in Liquidation Amount of the Securities. . . . . . . . 6
Special Event . . . . . . . . . . . . . . . . . . . . . . . . . 7
Special Regular Trustee . . . . . . . . . . . . . . . . . . . . 7
Sponsor . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Successor Entity. . . . . . . . . . . . . . . . . . . . . . . . 7
Successor Securities. . . . . . . . . . . . . . . . . . . . . . 7
Super Majority. . . . . . . . . . . . . . . . . . . . . . . . . 7
Tax Event . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
10% in Liquidation Amount of the Securities . . . . . . . . . . 8
Treasury Regulations. . . . . . . . . . . . . . . . . . . . . . 8
Trustee; Trustees . . . . . . . . . . . . . . . . . . . . . . . 8
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . 8
Underwriting Agreement. . . . . . . . . . . . . . . . . . . . . 8
ARTICLE II
Trust Indenture Act
SECTION 2.1. Trust Indenture Act; Application. . . . . . . . . . . . . . . . 8
SECTION 2.2. Lists of Holders of Securities. . . . . . . . . . . . . . . . . 9
SECTION 2.3 Reports by the Property Trustee . . . . . . . . . . . . . . . . 9
SECTION 2.4 Periodic Reports to Property Trustee. . . . . . . . . . . . . . 9
SECTION 2.5. Evidence of Compliance with Conditions Precedent. . . . . . . .10
SECTION 2.6. Events of Default; Waiver . . . . . . . . . . . . . . . . . . .10
SECTION 2.7. Event of Default; Notice. . . . . . . . . . . . . . . . . . . .11
ARTICLE III
Organization
SECTION 3.1. Name. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
SECTION 3.2. Office. . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
SECTION 3.3. Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of this Declaration.
-ii-
SECTION 3.4. Authority . . . . . . . . . . . . . . . . . . . . . . . . . . .13
SECTION 3.5. Title to Property of the Trust. . . . . . . . . . . . . . . . .13
SECTION 3.6. Powers and Duties of the Regular Trustees . . . . . . . . . . .13
SECTION 3.7. Prohibition of Actions by the Trust and the
Trustees . . . . . . . . . . . . . . . . . . . . . . . . .16
SECTION 3.8. Powers and Duties of the Property Trustee . . . . . . . . . . .17
SECTION 3.9. Certain Duties and Responsibilities of the
Property Trustee . . . . . . . . . . . . . . . . . . . . .19
SECTION 3.10. Certain Rights of Property Trustee. . . . . . . . . . . . . . .21
SECTION 3.11. Delaware Trustee. . . . . . . . . . . . . . . . . . . . . . . .24
SECTION 3.12. Execution of Documents. . . . . . . . . . . . . . . . . . . . .24
SECTION 3.13. Not Responsible for Recitals or Issuance
of Securities. . . . . . . . . . . . . . . . . . . . . . .24
SECTION 3.14. Duration of Trust . . . . . . . . . . . . . . . . . . . . . . .24
SECTION 3.15 Mergers . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
ARTICLE IV
Sponsor
SECTION 4.1. Sponsor's Purchase of Common Securities . . . . . . . . . . . .26
SECTION 4.2. Responsibilities of the Sponsor . . . . . . . . . . . . . . . .27
SECTION 4.3. Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . .27
ARTICLE V
Trustees
SECTION 5.1. Number of Trustees. . . . . . . . . . . . . . . . . . . . . . .28
SECTION 5.2. Delaware Trustee. . . . . . . . . . . . . . . . . . . . . . . .28
SECTION 5.3. Property Trustee; Eligibility . . . . . . . . . . . . . . . . .29
SECTION 5.4. Qualifications of Regular Trustees and
Delaware Trustee Generally . . . . . . . . . . . . . . . .30
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of this Declaration.
-iii-
SECTION 5.5. Initial Trustees. . . . . . . . . . . . . . . . . . . . . . . .30
SECTION 5.6. Appointment, Removal and Resignation
of Trustees. . . . . . . . . . . . . . . . . . . . . . . .30
SECTION 5.7. Vacancies Among Trustees. . . . . . . . . . . . . . . . . . . .33
SECTION 5.8. Effect of Vacancies . . . . . . . . . . . . . . . . . . . . . .33
SECTION 5.9 Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . .33
SECTION 5.10. Delegation of Power . . . . . . . . . . . . . . . . . . . . . .33
ARTICLE VI
Distributions
SECTION 6.1. Distributions . . . . . . . . . . . . . . . . . . . . . . . . .34
ARTICLE VII
Issuance of Securities
SECTION 7.1. General Provisions Regarding Securities . . . . . . . . . . . .34
ARTICLE VIII
Termination of Trust
SECTION 8.1. Termination of Trust. . . . . . . . . . . . . . . . . . . . . .36
ARTICLE IX
Transfer of Securities
SECTION 9.1. Transfer of Securities. . . . . . . . . . . . . . . . . . . . .37
SECTION 9.2. Transfer of Certificates. . . . . . . . . . . . . . . . . . . .37
SECTION 9.3. Deemed Security Holders . . . . . . . . . . . . . . . . . . . .38
SECTION 9.4. Book Entry Interests. . . . . . . . . . . . . . . . . . . . . .38
SECTION 9.5. Notices to Clearing Agency. . . . . . . . . . . . . . . . . . .39
SECTION 9.6. Appointment of Successor Clearing Agency. . . . . . . . . . . .39
SECTION 9.7. Definitive Preferred Security Certificates. . . . . . . . . . .39
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of this Declaration.
-iv-
SECTION 9.8. Mutilated, Destroyed, Lost or Stolen
Certificates. . . . . . . . . . . . . . . . . . . . . . . . . .40
ARTICLE X
Limitation of Liability of Holders
of Securities, Trustees and Others
SECTION 10.1. Liability . . . . . . . . . . . . . . . . . . . . . . . . . . .40
SECTION 10.2. Exculpation . . . . . . . . . . . . . . . . . . . . . . . . . .41
SECTION 10.3. Fiduciary Duty. . . . . . . . . . . . . . . . . . . . . . . . .42
SECTION 10.4. Indemnification . . . . . . . . . . . . . . . . . . . . . . . .43
SECTION 10.5. Outside Business. . . . . . . . . . . . . . . . . . . . . . . .43
ARTICLE XI
Accounting
SECTION 11.1. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . .44
SECTION 11.2. Certain Accounting Matters. . . . . . . . . . . . . . . . . . .44
SECTION 11.3. Banking . . . . . . . . . . . . . . . . . . . . . . . . . . . .45
SECTION 11.4. Withholding . . . . . . . . . . . . . . . . . . . . . . . . . .45
ARTICLE XII
Amendments and Meetings
SECTION 12.1. Amendments. . . . . . . . . . . . . . . . . . . . . . . . . . .45
SECTION 12.2. Meetings of the Holders of Securities; Action
by Written Consent . . . . . . . . . . . . . . . . . . . .47
ARTICLE XIII
Representations
of Property Trustee
SECTION 13.1. Representations and Warranties of Property
Trustee. . . . . . . . . . . . . . . . . . . . . . . . . .49
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of this Declaration.
-v-
ARTICLE XIV
Miscellaneous
SECTION 14.1. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . .49
SECTION 14.2. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . .50
SECTION 14.3. Intention of the Parties. . . . . . . . . . . . . . . . . . . .51
SECTION 14.4 Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . .51
SECTION 14.5 Successors and Assigns. . . . . . . . . . . . . . . . . . . . .51
SECTION 14.6 Partial Enforceability. . . . . . . . . . . . . . . . . . . . .51
SECTION 14.7 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . .51
TESTIMONIUM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52
SIGNATURE AND SEALS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52
EXHIBIT A: Form of Terms of _______% Trust Preferred Capital Securities and
_______% Trust Common Capital Securities
EXHIBIT B: Specimen of Debenture
EXHIBIT C: Underwriting Agreement
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of this Declaration.
-vi-
FORM
OF
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
NWPS CAPITAL FINANCING III
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 Business Trust Act (as defined herein) 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 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.
-2-
"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.
"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
Deferrable Interest 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.
-3-
"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.
"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.
"Fiscal Year" has the meaning set forth in Section 11.1.
"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 issuance of the Preferred Securities. 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.
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"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 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 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.
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"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.
"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.
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"66-2/3% in liquidation amount of the Securities" means, except as provided in
the Terms of 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.
"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.
"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 issuance of the Preferred Securities), (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 issuance of the Preferred
Securities, 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 income accrued or received on the Debentures,
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(ii) interest payable 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 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 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.
"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;
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(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 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
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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.
(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 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 .
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.
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(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 all of the Debentures
to be waived 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 may only be waived by the vote of all of the
Holders of the Common Securities ; 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.
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(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
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
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written notice to the Holders of Securities, the Regular Trustees may designate
another principal office.
SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to issue and sell
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 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, any Regular Trustee shall have the power, duty and
authority to cause the Trust to engage in the following activities:
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(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 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 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
of Common Securities;
(d) to give the Debenture Issuer, the Sponsor and the Property Trustee
prompt written notice of the occurrence of a Special 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 Special Event;
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(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;
(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
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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 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:
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(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
(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;
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(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 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;
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(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 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
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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 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;
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(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;
(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
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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);
(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
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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, 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.
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(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, any Regular Trustee is
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.
Notwithstanding anything to the contrary herein, the Sponsor is authorized to
execute on behalf of the Trust any documents referred to in Section 4.2.
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.
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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 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);
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(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
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 ___________________, 1995 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
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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 may 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
(e) to negotiate the terms of the Underwriting Agreement providing for
the sale of the Preferred Securities.
4.3 Expenses
(a) The Sponsor shall be directly responsible for and pay 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
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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,
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
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(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 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
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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
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
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(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, resignation,
retirement, removal, bankruptcy, dissolution, liquidation,
incompetence or incapacity to perform the duties of a Trustee,
provided that a 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:
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(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 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.
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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.
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
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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 shall have no
securities or other interests in the assets of the Trust other than
the Preferred Securities and the Common Securities.
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(b) The Certificates shall be signed on behalf of the Trust 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, except with respect to the Common Securities as
provided in Section 10.1(b) of this Declaration.
(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.
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ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 Termination of Trust.
(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 Article X shall survive the termination of the
Trust.
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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 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, to the fullest extent permitted by law,
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
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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
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
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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 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
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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 in accordance with Section 7.1(b), 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.
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 Securities, the Sponsor shall not be:
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(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).
(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.
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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:
(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
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(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, 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
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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.
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
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(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.
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,
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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
(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:
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(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 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
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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 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.
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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
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:
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(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 III
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):
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.
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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.
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:
--------------------------------------------------
Merle D. Lewis, as Regular Trustee
--------------------------------------------------
Richard R. Hylland, as Regular 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
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be 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
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__________, 1995, to the Prospectus dated __________, 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, 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
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Securities, shall be distributed on a Pro Rata basis to the Holders of the
Securities in exchange for such Securities.
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
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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 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 issuance of the Preferred Securities), (c) any
interpretation or pronouncement that provides for a position with
respect to such laws or regulations that differs from the
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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 issuance of the Preferred
Securities, 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 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
issuance of the Preferred Securities. 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 (iii) 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.
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(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 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
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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 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.
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(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.
(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 pay Distributions in full on the Preferred
Securities for six (6) 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
(6) 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
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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 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 the exercise of any trust or power conferred upon the
Property Trustee under the Declaration as holder of the Debentures,
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 of all Holders of Debentures affected thereby, the Property
Trustee may only give such consent at the direction of all holders
of the Preferred Securities. 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
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Preferred Securities under this paragraph unless the Property Trustee
has obtained an opinion of tax counsel to the effect that, as a
result of such action, 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, to the fullest extent permitted by law, any Holder of
Preferred Securities may, after 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 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
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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 has 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 the exercise of any trust or power conferred upon the
Property Trustee under the Declaration as holder of the Debentures,
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 of all Holders of Debentures, the Property Trustee may
only give such consent at the direction of all Holders of the
Common Securities. 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 Common 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, to the fullest extent permitted by law, any
Holder of Common Securities may, after 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 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.
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, voting
together 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 affected thereby; 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
A-13
Indenture with respect to any amendment, modification or termination
of 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 all Holders of the Debentures, the
Property Trustee may only give such consent at the direction of all
Holders of the Debentures ; 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 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.
A-14
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.
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.
A-15
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 Depositary (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 Depositary 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 III
Preferred Securities.
(liquidation amount $25 per Preferred Security)
NWPS CAPITAL FINANCING III, 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.
A-16
THE DESIGNATION, RIGHTS, PRIVILEGES, RESTRICTIONS (INCLUDING RESTRICTIONS ON
TRANSFER), 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
A-17
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
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 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)
A-18
ANNEX II
Certificate Number Number of Common Securities
------------ ------------
Certificate Evidencing Common Securities
of
NWPS CAPITAL FINANCING III
Common Securities.
(liquidation amount $25 per Common Security)
NWPS CAPITAL FINANCING III, 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
(INCLUDING RESTRICTIONS ON TRANSFER), 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.
A-19
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.
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)
A-20
EXHIBIT B
SPECIMEN OF DEBENTURE
B-1
EXHIBIT C
UNDERWRITING AGREEMENT
C-1