EXHIBIT 4(T)
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AMENDED AND RESTATED
TRUST AGREEMENT
BETWEEN
ALLETE (LEGALLY INCORPORATED AS MINNESOTA POWER, INC.), AS DEPOSITOR
AND
THE BANK OF NEW YORK,
THE BANK OF NEW YORK (DELAWARE),
,
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,
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,
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AND
, AS TRUSTEES
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AND
THE SEVERAL HOLDERS
DATED AS OF
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ALLETE CAPITAL
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ALLETE Capital
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Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
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Section 310(a)(1)...............................................8.07
(a)(2)...............................................8.07
(a)(3)...............................................8.09
(a)(4)...............................................Not Applicable
(b)..................................................8.08
Section 311(a)..................................................8.13
(b)..................................................8.13
Section 312(a)..................................................5.07
(b)..................................................5.07
(c)..................................................5.07
Section 313(a)..................................................8.14(a)
(a)(4)...............................................8.14(b)
(b)..................................................8.14(b)
(c)..................................................8.14(a)
(d)..................................................8.14(a), 8.14(b)
Section 314(a)..................................................Not Applicable
(b)..................................................Not Applicable
(c)(1)...............................................Not Applicable
(c)(2)...............................................Not Applicable
(c)(3)...............................................Not Applicable
(d)..................................................Not Applicable
(e)..................................................Not Applicable
Section 315(a)..................................................8.01
(b)..................................................8.02, 8.14(b)
(c)..................................................8.01(a)
(d)..................................................8.01, 8.03
(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)..................................................5.09
Section 318(a)..................................................10.10
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Trust Agreement.
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TABLE OF CONTENTS
ARTICLE I. Defined Terms......................................................2
Section 1.01. Definitions....................................................2
ARTICLE II. Establishment of the Trust.......................................10
Section 2.01. Name..........................................................10
Section 2.02. Office of the Delaware Trustee; Principal Place of
Business......................................................10
Section 2.03. Initial Contribution of Trust Property;
Organizational Expenses.......................................11
Section 2.04. Issuance of the Preferred Trust Securities....................11
Section 2.05. Subscription and Purchase of Debentures; Issuance of
the Common Trust Securities...................................11
Section 2.06. Declaration of Trust; Appointment of Additional
Administrative Trustees.......................................12
Section 2.07. Authorization to Enter into Certain Transactions..............12
Section 2.08. Assets of Trust...............................................15
Section 2.09. Title to Trust Property.......................................15
ARTICLE III. Payment Account.................................................15
Section 3.01. Payment Account...............................................15
ARTICLE IV. Distributions; Redemption........................................16
Section 4.01. Distributions.................................................16
Section 4.02. Redemption....................................................17
Section 4.03. Subordination of Common Trust Securities......................19
Section 4.04. Payment Procedures............................................19
Section 4.05. Tax Returns and Reports.......................................19
Section 4.06. Payments under Indenture......................................20
ARTICLE V. Trust Securities Certificates.....................................20
Section 5.01. Initial Ownership.............................................20
Section 5.02. The Trust Securities Certificates.............................20
Section 5.03. Execution and Delivery of Trust Securities
Certificates..................................................21
Section 5.04. Registration of Transfer and Exchange of Trust
Securities Certificates.......................................21
Section 5.05. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates..................................................22
Section 5.06. Persons Deemed Securityholders................................22
Section 5.07. Access to List of Securityholders' Names and Addresses........22
Section 5.08. Maintenance of Office or Agency...............................23
Section 5.09. Appointment of Paying Agent...................................23
Section 5.10. Ownership of Common Trust Securities by Depositor.............24
Section 5.11. Definitive Preferred Trust Securities Certificates............24
Section 5.12. Book-Entry System.............................................24
Section 5.13. Rights of Securityholders.....................................25
Section 5.14. Cancellation by Transfer Agent and Registrar..................25
ARTICLE VI. Acts of Securityholders; Meetings; Voting........................25
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Section 6.01. Limitations on Voting Rights..................................25
Section 6.02. Notice of Meetings............................................26
Section 6.03. Meetings of Holders of Preferred Trust Securities.............27
Section 6.04. Voting Rights.................................................27
Section 6.05. Proxies, etc..................................................27
Section 6.06. Securityholder Action by Written Consent......................27
Section 6.07. Record Date for Voting and Other Purposes.....................28
Section 6.08. Acts of Securityholders.......................................28
Section 6.09. Inspection of Records.........................................29
ARTICLE VII. Representations and Warranties of the Property Trustee and the
Delaware Trustee.............................................................29
Section 7.01. Property Trustee..............................................29
Section 7.02. Delaware Trustee..............................................29
ARTICLE VIII. The Trustees...................................................30
Section 8.01. Certain Duties and Responsibilities...........................30
Section 8.02. Notice of Defaults............................................31
Section 8.03. Certain Rights of Property Trustee............................32
Section 8.04. Not Responsible for Recitals or Issuance of Securities........34
Section 8.05. May Hold Securities...........................................34
Section 8.06. Compensation; Fees; Indemnity.................................34
Section 8.07. Certain Trustees Required; Eligibility........................35
Section 8.08. Conflicting Interests.........................................36
Section 8.09. Co-Trustees and Separate Trustee..............................36
Section 8.10. Resignation and Removal; Appointment of Successor.............37
Section 8.11. Acceptance of Appointment by Successor........................39
Section 8.12. Merger, Conversion, Consolidation or Succession to
Business......................................................39
Section 8.13. Preferential Collection of Claims Against Depositor
or Trust......................................................39
Section 8.14. Reports by Property Trustee...................................40
Section 8.15. Reports to the Property Trustee...............................40
Section 8.16. Evidence of Compliance With Conditions Precedent..............40
Section 8.17. Number of Trustees............................................40
Section 8.18. Delegation of Power...........................................41
Section 8.19. Fiduciary Duty................................................41
ARTICLE IX. Termination and Liquidation......................................42
Section 9.01. Dissolution Upon Expiration Date..............................42
Section 9.02. Early Termination.............................................42
Section 9.03. Termination...................................................43
Section 9.04. Liquidation...................................................43
ARTICLE X. Miscellaneous Provisions..........................................44
Section 10.01. Guarantee by the Depositor and Assumption of
Obligations...................................................44
Section 10.02. Limitation of Rights of Securityholders.......................45
Section 10.03. Amendment.....................................................45
Section 10.04. Separability..................................................46
Section 10.05. Governing Law.................................................46
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Section 10.06. Successors....................................................46
Section 10.07. Headings......................................................46
Section 10.08. Notice and Demand.............................................47
Section 10.09. Agreement Not to Petition.....................................47
Section 10.10. Conflict with Trust Indenture Act.............................47
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AMENDED AND RESTATED TRUST AGREEMENT, dated as of , between
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(i) ALLETE (legally incorporated as Minnesota Power, Inc.), a Minnesota
corporation (the "Depositor"), (ii) THE BANK OF NEW YORK, a New York banking
corporation, as trustee (the "Property Trustee" and, in its separate capacity
and not in its capacity as Property Trustee, the "Bank"), (iii) THE BANK OF NEW
YORK (DELAWARE), a Delaware banking corporation, as Delaware trustee (the
"Delaware Trustee"), (iv) Philip R. Halverson, , ,
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and , as trustees, each an individual, and
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each of whose address is c/o ALLETE, 30 West Superior Street, Duluth, Minnesota
55802-2093 (each, an "Administrative Trustee" and collectively the
"Administrative Trustees") (the Property Trustee, the Delaware Trustee and the
Administrative Trustees are referred to herein each as a "Trustee" and
collectively as the "Trustees") and (v) the several Holders, as hereinafter
defined.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Depositor, the Property Trustee, the Delaware Trustee and
Philip R. Halverson, as Administrative Trustee, have heretofore duly declared
and established a business trust pursuant to the Delaware Business Trust Act by
the entering into of that certain Trust Agreement, dated as of March , 2001
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(the "Original Trust Agreement"), and by the execution by the Property Trustee,
the Delaware Trustee and Philip R. Halverson, as Administrative Trustee and
filing with the Secretary of State of the State of Delaware of the Certificate
of Trust, dated March , 2001, a copy of which is attached as Exhibit A; and
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WHEREAS, the Trust and the Depositor entered into an Underwriting
Agreement dated with and
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.
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WHEREAS, the parties hereto desire to amend and restate the Original
Trust Agreement in its entirety as set forth herein to provide for, among other
things, (i) the acquisition by the Trust from the Depositor of all of the right,
title and interest in the Debentures, as hereinafter defined, (ii) the issuance
of the Common Trust Securities, as hereinafter defined, by the Trust to the
Depositor, and (iii) the issuance of the Preferred Trust Securities, as
hereinafter defined, by the Trust.
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, each party, for the benefit of the other party and
for the benefit of the Securityholders, hereby amends and restates the Original
Trust Agreement in its entirety and agrees as follows:
ARTICLE I.
DEFINED TERMS
SECTION 1.01. DEFINITIONS. For all purposes of this Trust Agreement,
except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.08.
"Additional Amount" means, with respect to Trust Securities
of a given Liquidation Amount for a given period, the amount of
Additional Interest (as defined in the Subordinated Indenture) paid by
the Debenture Issuer on a Like Amount of Debentures for such period.
"Administrative Trustee" means each of the individuals
identified as an "Administrative Trustee" in the preamble to this
Trust Agreement solely in their capacities as Administrative Trustees
of the Trust and not in their individual capacities, or such trustee's
successor in interest in such capacity, or any successor trustee
appointed as herein provided.
"Adverse Tax Consequence" means any of the circumstances
described in clauses (i), (ii) and (iii) of the definition of "Tax
Event" herein.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes
of this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the
foregoing.
"Bank" has the meaning specified in the preamble to this
Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
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(i) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in
respect of such Person under Federal bankruptcy law or any other
applicable Federal or State law, or appointing a receiver,
liquidator, assignee, trustee, sequestrator or other similar
official of such Person or of any substantial part of its
property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order unstayed
and in effect for a period of 60 consecutive days; or
(ii) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or of the consent by it to
the institution of bankruptcy or insolvency proceedings against
it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under Federal bankruptcy law or
any other applicable Federal or State law, or the consent by it
to the filing of such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator or similar
official of such Person or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to
pay its debts generally as they become due.
"Bankruptcy Laws" has the meaning specified in Section
10.09.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Depositor to have been
duly adopted by the Depositor's Board of Directors or a duly
authorized committee thereof and to be in full force and effect on the
date of such certification, and delivered to the appropriate Trustee.
"Business Day" means a day other than (x) a Saturday or a
Sunday, (y) a day on which banks in New York, New York are authorized
or obligated by law or executive order to remain closed or (z) a day
on which the Property Trustee's Corporate Trust Office or the
Debenture Trustee's principal corporate trust office is closed for
business.
"Certificate of Trust" has the meaning specified in Section
2.07(d).
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act.
"Closing Date" means the date of execution and delivery of
this Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Exchange Act, or,
if at any time after the execution of this instrument such Commission
is not existing and performing the duties now assigned to it under the
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Trust Indenture Act, then the body performing such duties at such
time.
"Common Trust Security" means a security representing an
undivided beneficial interest in the assets of the Trust having a
Liquidation Amount of $[25] and having the rights provided therefor in
this Trust Agreement, including the right to receive Distributions,
Debentures and a Liquidation Distribution as provided herein.
"Common Trust Securities Certificate" means a certificate
evidencing ownership of Common Trust Securities, substantially in the
form attached as Exhibit B.
"Corporate Trust Office" means the principal corporate trust
office of the Property Trustee located in New York, New York which at
the date of execution of this Trust Agreement is located at 101
Barclay Street, New York, New York 10286, Attention: Corporate Trust
Administration.
"Covered Person" means: (a) any officer, director,
shareholder, partner, member, representative, employee or agent of the
Trust or the Trust's Affiliates; and (b) any Holder of Trust
Securities.
"Debenture Event of Default" means an "Event of Default" as
defined in the Subordinated Indenture.
"Debenture Issuer" means ALLETE, a Minnesota corporation, in
its capacity as issuer of the Debentures and its successors.
"Debenture Redemption Date" means "Redemption Date" as
defined in the Subordinated Indenture with respect to the Debentures.
"Debenture Trustee" means The Bank of New York, as trustee
under the Subordinated Indenture, and its permitted successors and
assigns as such trustee.
"Debentures" means up to $ aggregate principal
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amount of the Debenture Issuer's % Junior Subordinated Debentures,
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Series , issued pursuant to the Subordinated Indenture which will
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mature on .
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"Definitive Preferred Trust Securities Certificates" means
Preferred Trust Securities Certificates issued in certificated, fully
registered form as provided in Section 5.11.
"Delaware 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.
"Delaware Trustee" means the banking corporation identified
as the "Delaware Trustee" in the preamble to this Trust Agreement
solely in its capacity as Delaware Trustee of the Trust and not in its
individual capacity, or its successor in interest in such capacity, or
any successor trustee appointed as herein provided.
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"Depositor" has the meaning specified in the preamble to
this Trust Agreement and includes ALLETE, in its capacity as Holder of
the Common Trust Securities and its successors.
"Distribution Date" has the meaning specified in Section
4.01(a).
"Distributions" means amounts payable in respect of the
Trust Securities as provided in Section 4.01.
"Early Termination Event" has the meaning specified in
Section 9.02.
"Event of Default" means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
(i) the occurrence of a Debenture Event of Default; or
(ii) default by the Trust in the payment of any Distribution
when it becomes due and payable, and continuation of such default
for a period of 30 days; or
(iii) default by the Trust in the payment of any Redemption
Price, plus accumulated and unpaid Distributions, of any Trust
Security when it becomes due and payable; or
(iv) default in the performance, or breach, in any material
respect of any covenant or warranty of the Trustees in this Trust
Agreement (other than a covenant or warranty a default in whose
performance or breach is specifically dealt with in clause (ii)
or (iii) above) and continuation of such default or breach for a
period of 60 days after there has been given, by registered or
certified mail, to the Trust by the Holders of at least 10% in
Liquidation Amount of the Outstanding Preferred Trust Securities
a written notice specifying such default or breach and requiring
it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(v) the occurrence of a Bankruptcy Event with respect to the
Trust.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Expense Agreement" means the Agreement as to Expenses and
Liabilities, dated the date hereof, between the Depositor and the
Trust, substantially in the form attached as Exhibit C, as amended
from time to time.
"Expiration Date" shall have the meaning specified in
Section 9.01.
"Guarantee" means the Guarantee Agreement executed and
delivered by the Depositor and The Bank of New York, a New York
5
banking corporation, as trustee, contemporaneously with the execution
and delivery of this Trust Agreement, for the benefit of the Holders
of the Preferred Trust Securities, as amended from time to time.
"Indemnified Person" means any Trustee, any Affiliate of any
Trustee, or any officer, director, shareholder, member, partners,
employee, representative or agent of any Trustee, or any employee or
agent of the Trust or its Affiliates.
"Investment Company Act" means the Investment Company Act of
1940, as amended.
"Lien" means any lien, pledge, charge, encumbrance,
mortgage, deed of trust, adverse ownership interest, hypothecation,
assignment, security interest or preference, priority or other
security agreement or preferential arrangement of any kind or nature
whatsoever.
"Like Amount" means (i) Trust Securities having a
Liquidation Amount equal to the principal amount of Debentures to be
contemporaneously redeemed in accordance with the Subordinated
Indenture and the proceeds of which will be used to pay the Redemption
Price of such Trust Securities plus accumulated and unpaid
Distributions to the date of such payment and (ii) Debentures having a
principal amount equal to the Liquidation Amount of the Trust
Securities of the Holders to which such Debentures are distributed.
"Liquidation Amount" means the stated amount of $__ per
Trust Security.
"Liquidation Date" means the date on which Debentures are to
be distributed to Holders of Trust Securities in connection with a
dissolution and liquidation of the Trust pursuant to Section 9.04.
"Liquidation Distribution" has the meaning specified in
Section 9.04(e).
"Offer" has the meaning specified in Section 2.07(c).
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman of the Board, the President or
a Vice President, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary, of the Depositor, and delivered
to the appropriate Trustee. One of the officers signing an Officers'
Certificate given pursuant to Section 8.16 shall be the principal
executive, financial or accounting officer of the Depositor. Any
Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Trust Agreement shall
include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
6
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Trust, the Property Trustee, the Delaware
Trustee or the Depositor, but not an employee of the Trust, the
Property Trustee, the Delaware Trustee or the Depositor, and who shall
be reasonably acceptable to the Property Trustee. Any Opinion of
Counsel delivered with respect to compliance with a condition or
covenant provided for in this Trust Agreement shall include statements
comparable to the statements referred to in the definition of
"Officers' Certificate" herein.
"Original Trust Agreement" has the meaning specified in the
recitals to this Trust Agreement.
"Outstanding," when used with respect to Preferred Trust
Securities, means, as of the date of determination, all Preferred
Trust Securities theretofore delivered under this Trust Agreement,
except:
(i) Preferred Trust Securities theretofore canceled by the
Transfer Agent and Registrar or delivered to the Transfer Agent
and Registrar for cancellation;
(ii) Preferred Trust Securities for whose payment or
redemption money in the necessary amount has been theretofore
deposited with the Property Trustee or any Paying Agent for the
Holders of such Preferred Trust Securities; provided that, if
such Preferred Trust Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Trust
Agreement; and
(iii) Preferred Trust Securities in exchange for or in lieu
of which other Preferred Trust Securities have been delivered
pursuant to this Trust Agreement, including pursuant to Sections
5.04, 5.05 or 5.11;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Trust Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Preferred Trust Securities owned by the Depositor, any Trustee or any Affiliate
of the Depositor or any Trustee shall be disregarded and deemed not to be
Outstanding, except that (a) in determining whether any Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Preferred Trust Securities which such Trustee
knows to be so owned shall be so disregarded and (b) the foregoing shall not
apply at any time when all of the Outstanding Preferred Trust Securities are
owned by the Depositor, one or more of the Trustees and/or any such Affiliate.
Preferred Trust Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
7
Administrative Trustee the pledgee's right so to act with respect to such
Preferred Trust Securities and that the pledgee is not the Depositor or any
Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a
Trust Securities Certificate as reflected in the records of the
Securities Depository or, if a Securities Depository participant is
not the beneficial owner, then as reflected in the records of a Person
maintaining an account with such Securities Depository (directly or
indirectly), in accordance with the rules of such Securities
Depository.
"Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 5.09 and shall initially be The Bank of
New York.
"Payment Account" means a segregated non-interest-bearing
corporate trust account maintained by the Property Trustee with
, or such other banking institution as the Depositor
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shall select for the benefit of the Securityholders in which all
amounts paid in respect of the Debentures will be held and from which
the Paying Agent, pursuant to Section 5.09, shall make payments to the
Securityholders in accordance with Sections 4.01 and 4.02.
"Person" means any individual, corporation, partnership,
joint venture, trust, limited liability company or corporation,
unincorporated organization or government or any agency or political
subdivision thereof.
"Preferred Trust Security" means a security representing an
undivided beneficial interest in the assets of the Trust having a
Liquidation Amount of $ and having rights provided therefor in this
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Trust Agreement, including the right to receive Distributions,
Debentures and a Liquidation Distribution as provided herein and, in
certain circumstances, a preference over the Common Trust Securities.
"Preferred Trust Securities Certificate" means a certificate
evidencing ownership of Preferred Trust Securities, substantially in
the form attached as Exhibit D.
"Property Trustee" means the commercial bank or trust
company identified as the "Property Trustee" in the preamble to this
Trust Agreement solely in its capacity as Property Trustee of the
Trust and not in its individual capacity, or its successor in interest
in such capacity, or any successor trustee appointed as herein
provided.
"Redemption Date" means, with respect to any Trust Security
to be redeemed, the date fixed for such redemption by or pursuant to
this Trust Agreement; provided that each Debenture Redemption Date
shall be a Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any date fixed for
redemption of any Trust Security, the Liquidation Amount of such Trust
Security.
"Relevant Trustee" shall have the meaning specified in
Section 8.10.
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"Responsible Officer," when used with respect to the
Property Trustee means an officer of the Property Trustee assigned by
the Property Trustee to administer its corporate trust matters.
"Securities Depository" shall have the meaning specified in
Section 5.12. The Depository Trust Company will be the initial
Securities Depository.
"Securities Register" shall mean the Securities Register as
described in Section 5.04.
"Securityholder" or "Holder" means a Person in whose name a
Trust Security or Securities is registered in the Securities Register;
any such Person shall be a beneficial owner of such security within
the meaning of the Delaware Business Trust Act.
"Subordinated Indenture" means the Indenture, dated as of
, between the Depositor and the Debenture Trustee, as
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trustee, as amended or supplemented from time to time.
"Tax Event" means the receipt by the Trust or the Depositor
of an opinion of counsel experienced in such matters to the effect
that, as a result of (a) any amendment to, clarification of, or change
(including any announced prospective change) in, the laws or treaties
(or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein affecting taxation,
(b) any judicial decision or any official administrative
pronouncement, ruling, regulatory procedure, notice or announcement
(including any notice or announcement of intent to issue or adopt any
such administrative pronouncement, ruling, regulatory procedure or
regulation) (each, an "Administrative Action"), or (c) any amendment
to, clarification of, or change in the official position or the
interpretation of any such Administrative Action or judicial decision
or any interpretation or pronouncement that provides for a position
with respect to such Administrative Action or judicial decision that
differs from the theretofore generally accepted position, in each case
by any legislative body, court, governmental authority or regulatory
body, irrespective of the time or manner in which such amendment,
clarification or change is introduced or made known, which amendment,
clarification, or change is effective, which Administrative Action is
taken or which judicial decision is issued, in each case on or after
the date of issuance of the Preferred Trust Securities, there is more
than an insubstantial risk that (i) the Trust is, or will be, subject
to United States federal income tax with respect to interest received
on the Debentures, (ii) interest payable by the Depositor on the
Debentures is not, or will not be, fully deductible by the Depositor
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.
"Transfer Agent and Registrar" shall mean the transfer agent
and registrar for the Preferred Trust Securities appointed by the
Trust and shall be initially The Bank of New York.
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"Trust" means the Delaware business trust created by the
Original Trust Agreement and the Certificate of Trust and continued
hereby and identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented in
accordance with the applicable provisions hereof, including all
exhibits hereto, including, for all purposes of this Amended and
Restated Trust Agreement and any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are deemed
to be a part of and govern this Amended and Restated Trust Agreement
and any such modification, amendment or supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939
as amended and in force at the date as of which this instrument was
executed; provided, however, that in the event the Trust Indenture Act
of 1939 is amended after such date, "Trust Indenture Act" means, to
the extent required by any such amendment, the Trust Indenture Act of
1939 as so amended.
"Trust Property" means (i) the Debentures, (ii) any cash on
deposit in, or owing to, the Payment Account and (iii) all proceeds
and rights in respect of the foregoing and any other property and
assets for the time being held by the Property Trustee pursuant to the
trusts of this Trust Agreement.
"Trust Securities Certificate" means any one of the Common
Trust Securities Certificates or the Preferred Trust Securities
Certificates.
"Trust Security" means any one of the Common Trust
Securities or the Preferred Trust Securities.
"Underwriting Agreement" means the Underwriting Agreement,
dated as of , among the Trust, the Depositor and [the
----------------
representatives of] the underwriters named therein.
ARTICLE II.
ESTABLISHMENT OF THE TRUST
SECTION 2.01. NAME. The Trust continued hereby shall be known as
"ALLETE Capital " in which name the Trustees may conduct the business of the
--
Trust, make and execute contracts and other instruments on behalf of the Trust
and sue and be sued.
SECTION 2.02. OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE OF
BUSINESS. The office of the Delaware Trustee in the State of Delaware is White
Clay Center, Route 273, Newark, Delaware 19711, or at such other address in
Delaware as the Delaware Trustee may designate by written notice to the
Securityholders and the Depositor. The principal place of business of the Trust
is ALLETE, 30 West Superior Street, Duluth, Minnesota 55802-2093.
10
SECTION 2.03. INITIAL CONTRIBUTION OF TRUST PROPERTY; ORGANIZATIONAL
EXPENSES. The Property Trustee acknowledges receipt in trust from the Depositor
in connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay organizational
expenses of the Trust as they arise or shall, upon request of any Trustee,
promptly reimburse such Trustee for any such expenses paid by such Trustee. The
Depositor shall make no claim upon the Trust Property for the payment of such
expenses.
SECTION 2.04. ISSUANCE OF THE PREFERRED TRUST SECURITIES. On
, an authorized representative of the Depositor and the Trust
- ----------------
both executed and delivered the Underwriting Agreement. Contemporaneously with
the execution and delivery of this Trust Agreement, one of the Administrative
Trustees, on behalf of the Trust in accordance with Section 5.02, executed and
delivered Preferred Trust Securities Certificates, registered in the name of the
nominee of The Depository Trust Company, having an aggregate Liquidation Amount
of $ . [In the event and to the extent the over-allotment option
-----------
granted by the Trust and the Depositor pursuant to the Underwriting Agreement is
exercised by the underwriters named therein, on each option closing date, one of
the Administrative Trustees, on behalf of the Trust, shall execute in accordance
with Section 5.02 and deliver to the underwriters named in the Underwriting
Agreement, Preferred Trust Securities Certificates, registered in the name of
the nominee of The Depository Trust Company, having an aggregate Liquidation
Amount of up to $ .]
----------
SECTION 2.05. SUBSCRIPTION AND PURCHASE OF DEBENTURES; ISSUANCE OF THE
COMMON TRUST SECURITIES. Contemporaneously with the execution and delivery of
this Trust Agreement, (a) the Administrative Trustees, on behalf of the Trust,
subscribed to and purchased from the Debenture Issuer Debentures, registered in
the name of the Property Trustee and having an aggregate principal amount equal
to $ , in satisfaction of the purchase price for such Debentures, (b)
-----------
one of the Administrative Trustees, on behalf of the Trust, executed and
delivered to the Depositor Common Trust Securities Certificates, registered in
the name of the Depositor, representing Common Trust Securities having
-------
an aggregate Liquidation Amount of $ , and (c) the Property Trustee, on
---------
behalf of the Trust, delivered to the Debenture Issuer the sum of $
-----------
representing the proceeds from the sale of the Preferred Trust Securities
pursuant to the Underwriting Agreement. [In the event and to the extent the
over-allotment option granted by the Trust and the Depositor pursuant to the
Underwriting Agreement is exercised by the underwriters named therein, on each
option closing date, one of the Administrative Trustees, on behalf of the Trust,
shall execute in accordance with Section 5.02 and deliver to the Depositor
Common Trust Securities Certificates, registered in the name of the Depositor,
and the Property Trustee, on behalf of the Trust, shall deliver to the Debenture
Issuer the proceeds from each sale of additional Preferred Trust Securities
pursuant to the Underwriting Agreement; provided, however, that the aggregate
Liquidation Amount of Common Trust Securities issued in connection with the
exercise of the over-allotment option shall not exceed $ and the
-------
aggregate proceeds to the Debenture Issuer from the sale of additional Preferred
Trust Securities in connection with the exercise of the over-allotment option
shall not exceed $ . In connection with the over-allotment option, the
----------
Trust may purchase additional Debentures in the amount equal to the Liquidation
Amount of the Common Securities plus the Liquidation Amount of the Preferred
Securities.]
11
SECTION 2.06. DECLARATION OF TRUST; APPOINTMENT OF ADDITIONAL
ADMINISTRATIVE TRUSTEES. The exclusive purposes and functions of the Trust are
(i) to issue Trust Securities and invest the proceeds thereof in Debentures, and
(ii) to engage in those activities necessary or incidental thereto. The
Depositor hereby appoints the Trustees as trustees of the Trust, to have all the
rights, powers and duties to the extent set forth herein. The Property Trustee
hereby declares that it will hold the Trust Property in trust upon and subject
to the conditions set forth herein for the benefit of the Securityholders. The
Trustees shall have all rights, powers and duties set forth herein and in
accordance with applicable law with respect to accomplishing the purposes of the
Trust. Anything in this Trust Agreement to the contrary notwithstanding, the
Delaware Trustee shall not be entitled to exercise any powers, nor shall the
Delaware Trustee have any of the duties and responsibilities of the Property
Trustee or the Administrative Trustees set forth herein. The Delaware Trustee
shall be one of the Trustees of the Trust for the sole and limited purpose of
fulfilling the requirements of Section 3807 of the Delaware Business Trust Act.
SECTION 2.07. AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS. (a)
The Trustees shall conduct the affairs of the Trust in accordance with the terms
of this Trust Agreement. Subject to the limitations set forth in paragraph (b)
of this Section and Article VIII and in accordance with the following provisions
(A) and (B), the Trustees shall have the authority to enter into all
transactions and agreements determined by the Trustees to be appropriate in
exercising the authority, express or implied, otherwise granted to the Trustees
under this Trust Agreement, and to perform all acts in furtherance thereof,
including without limitation, the following:
(A) As among the Trustees, the Administrative Trustees, acting singly
or together, shall have the power, duty and authority to act on behalf of
the Trust with respect to the following matters:
(i) the issuance and sale of the Trust Securities;
(ii) without the consent of any Person, to cause the Trust to
enter into and to execute, deliver and perform on behalf of the Trust,
the Expense Agreement, and such other agreements as may be necessary
or desirable in connection with the consummation of the Underwriting
Agreement;
(iii) to qualify the Trust to do business in any jurisdiction as
may be necessary or desirable;
(iv) the collection of interest, principal and any other payments
made in respect of the Debentures;
(v) the registration of the Preferred Trust Securities under the
Securities Act of 1933, as amended, and under state securities or blue
sky laws, and the qualification of this Trust Agreement as a trust
indenture under the Trust Indenture Act;
12
(vi) the appointment of a Paying Agent and a Transfer Agent and
Registrar in accordance with this Trust Agreement;
(vii) registering transfers of the Trust Securities in accordance
with this Trust Agreement;
(viii) the establishment of a record date for any of the purposes
contemplated by Section 6.07 hereof;
(ix) to the extent provided in this Trust Agreement, the winding
up of the affairs of and liquidation of the Trust and the preparation,
execution and filing of the certificate of cancellation with the
Secretary of State of Delaware; and
(x) the taking of any action incidental to the foregoing as the
Administrative Trustees may from time to time determine is necessary
or advisable to protect and conserve the Trust Property for the
benefit of the Securityholders (without consideration of the effect of
any such action on any particular Securityholder).
(B) As among the Trustees, the Property Trustee shall have the power,
duty and authority to act on behalf of the Trust with respect to the
following ministerial matters:
(i) the establishment of the Payment Account;
(ii) the receipt of the Debentures;
(iii) the deposit of interest, principal and any other payments
made in respect of the Debentures in the Payment Account; (iv) the
distribution of amounts owed to the Securityholders in respect of the
Trust Securities in accordance with the terms of this Trust Agreement;
(v) the sending of notices of default and other information
regarding the Trust Securities and the Debentures to the
Securityholders in accordance with the terms of this Trust Agreement;
(vi) the distribution of the Trust Property in accordance with
the terms of this Trust Agreement;
(vii) to the extent provided in this Trust Agreement, the winding
up of the affairs of and liquidation of the Trust and the execution of
the certificate of cancellation to be prepared and filed by the
Administrative Trustees with the Secretary of State of the State of
Delaware; and
(viii) the taking of any ministerial action incidental to the
foregoing as the Property Trustee may from time to time determine is
necessary or advisable to protect and conserve the Trust Property for
13
the benefit of the Securityholders (without consideration of the
effect of any such action on any particular Securityholder).
Subject to this Section 2.07(a)(B), the Property Trustee
shall have none of the duties, powers or authority of the
Administrative Trustees set forth in Sections 2.07(a)(A) and 2.07(c)
or the Depositor set forth in Section 2.07(c). The Property Trustee
shall have the power and authority to exercise all of the rights,
powers and privileges of a holder of Debentures under the Subordinated
Indenture and, if an Event of Default occurs and is continuing, the
Property Trustee may, for the benefit of Holders of the Trust
Securities, in its discretion, proceed to protect and enforce its
rights as holder of the Debentures subject to the rights of the
Holders pursuant to the terms of this Trust Agreement.
(b) So long as this Trust Agreement remains in effect, the Trust (or
the Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustees shall not (i) acquire any investments or
engage in any activities not authorized by this Trust Agreement, (ii) sell,
assign, transfer, exchange, pledge, set-off or otherwise dispose of any of the
Trust Property or interests therein, including to Securityholders, except as
expressly provided herein, (iii) take any action that would cause the Trust to
fail or cease to qualify as a "grantor trust" for United States federal income
tax purposes and not as an association taxable as a corporation, (iv) incur any
indebtedness for borrowed money or (v) take or consent to any action that would
result in the placement of a Lien on any of the Trust Property. The Trustees
shall defend all claims and demands of all Persons at any time claiming any Lien
on any of the Trust Property adverse to the interest of the Trust or the
Securityholders in their capacity as Securityholders.
(c) In connection with the issue of the Preferred Trust Securities,
the Depositor and the Administrative Trustees, acting singly or together, (and,
in the case of (v) and (vii) below, Robert J. Reger, Jr., as authorized
representative of the Trust) shall have the right and responsibility to assist
the Trust with respect to, or effect on behalf of the Trust, the following (and
any actions taken by the Depositor in furtherance of the following prior to the
date of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) to prepare for filing by the Trust with the Commission and to
execute a registration statement on Form S-3 in relation to the
Preferred Trust Securities, including any amendments thereto;
(ii) to prepare for filing by the Trust with the Commission and
to execute a registration statement on Form 8-A including all
amendments thereto;
(iii) to prepare and file with The New York Stock Exchange, Inc.
and execute on behalf of the Trust a listing application and all other
applications, statements, certificates, agreements and other
instruments as shall be necessary or desirable to cause the Preferred
Trust Securities to be listed on such exchange;
(iv) to determine the states in which to take appropriate action
to qualify or register for sale all or part of the Preferred Trust
14
Securities and to do any and all such acts, other than actions which
must be taken by or on behalf of the Trust, and advise the Trustees of
actions they must take on behalf of the Trust, and prepare for
execution and filing any documents to be executed and filed by the
Trust or on behalf of the Trust, as the Depositor deems necessary or
advisable in order to comply with the applicable laws of any such
states;
(v) to execute and deliver on behalf of the Trust the
Underwriting Agreement and such other agreements as may be necessary
or desirable in connection with the consummation thereof;
(vi) to select the investment banker or bankers to act as
underwriters with respect to the offer and sale by the Trust of the
Preferred Trust Securities ("Offer") and negotiate the terms of the
Underwriting Agreement providing for the Offer; and
(vii) to take any other actions necessary or desirable to carry
out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs of
the Trust and to operate the Trust so that the Trust will not be deemed to be an
"investment company" required to be registered under the Investment Company Act
or classified other than as a "grantor trust" for United States federal income
tax purposes and not as an association taxable as a corporation and so that the
Debentures will be treated as indebtedness of the Debenture Issuer for United
States federal income tax purposes. In this connection, the Depositor and the
Administrative Trustees are authorized to take any action, not inconsistent with
applicable law, the certificate of trust filed with the Secretary of State of
the State of Delaware with respect to the Trust (as amended or restated from
time to time, the "Certificate of Trust") or this Trust Agreement, that each of
the Depositor and the Administrative Trustees determines in its discretion to be
necessary or desirable for such purposes, as long as such action does not
materially adversely affect the interests of the Holders of the Preferred Trust
Securities.
SECTION 2.08. ASSETS OF TRUST. The assets of the Trust shall consist
of the Trust Property.
SECTION 2.09. TITLE TO TRUST PROPERTY. Legal title to all Trust
Property shall be vested at all times in the Property Trustee (in its capacity
as such) and shall be held and administered by the Property Trustee for the
benefit of the Securityholders in accordance with this Trust Agreement.
ARTICLE III.
PAYMENT ACCOUNT
SECTION 3.01. PAYMENT ACCOUNT. (a) (a) On or prior to the Closing
Date, the Property Trustee shall establish the Payment Account. The Property
Trustee and the Paying Agent appointed by the Administrative Trustees shall have
exclusive control and sole right of withdrawal with respect to the Payment
15
Account for the purpose of making deposits in and withdrawals from the Payment
Account in accordance with this Trust Agreement. All monies and other property
deposited or held from time to time in the Payment Account shall be held by the
Property Trustee in the Payment Account for the exclusive benefit of the Holders
of Trust Securities and for distribution as herein provided, including (and
subject to) any priority of payments provided for herein. The Property Trustee
shall have no liability in any respect whatsoever in regards to any moneys or
other property deposited in the Payment Account at an institution other than the
Property Trustee.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal or interest on, and any other
payments or proceeds with respect to, the Debentures. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV.
DISTRIBUTIONS; REDEMPTION
SECTION 4.01. DISTRIBUTIONS. (a) (a) Distributions on the Trust
Securities shall be cumulative, and will accumulate whether or not there are
funds of the Trust available for the payment of Distributions. Distributions
shall accrue from the Closing Date, and, except in the event that the Depositor
exercises its right to extend the interest payment period for the Debentures
pursuant to Section 311 of the Subordinated Indenture, shall be payable
quarterly in arrears on , , , and of each
-------- ------- ------------ -----------
year, commencing on ______________. If any date on which Distributions are
otherwise payable on the Trust Securities is not a Business Day, then the
payment of such Distribution shall be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such
delay) in each case, with the same force and effect as if made on such date
(each date on which Distributions are payable in accordance with this Section
4.01(a) a "Distribution Date").
(b) Distributions payable on the Trust Securities shall be fixed at a
rate of % per annum of the Liquidation Amount of the Trust Securities. The
----
amount of Distributions payable for any quarterly period shall be computed on
the same basis as interest is calculated on the Debentures. If the interest
payment period for the Debentures is extended pursuant to Section 311 of the
Subordinated Indenture, then Distributions on the Trust Securities will be
deferred for the period equal to the extension of the interest payment period
for the Debentures and the rate per annum at which Distributions on the Trust
Securities accumulate shall be increased by an amount such that the aggregate
amount of Distributions that accumulate on all Trust Securities during any such
extended interest payment period is equal to the aggregate amount of interest
(including, to the extent permitted by law, interest payable on unpaid interest
at the percentage rate per annum set forth above, compounded quarterly) that
accrues during any such extended interest payment period on the Debentures. The
amount of Distributions payable for any period shall include the Additional
Amounts, if any.
16
(c) Distributions on the Trust Securities shall be made and shall be
deemed payable on each Distribution Date only to the extent that the Trust has
funds available in the Payment Account for the payment of such Distributions.
(d) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on the
Securities Register for the Trust Securities on the relevant record date, which
shall be one Business Day prior to the relevant Distribution Date, if Trust
Securities are in book-entry only form, and 15 days prior to the relevant
Distribution Date if Trust Securities are not in book-entry only form.
SECTION 4.02. REDEMPTION. (a) On each Debenture Redemption Date and at
the maturity date ("Maturity Date") for the Debentures (as defined in the
Subordinated Indenture), the Property Trustee will be required to redeem a Like
Amount of Trust Securities at the Redemption Price plus accumulated and unpaid
Distributions to the Redemption Date or Maturity Date, as the case may be.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60
days prior to the Redemption Date to each Holder of Trust Securities to be
redeemed, at such Holder's address appearing in the Security Register. All
notices of redemption or liquidation shall state:
(i) the Redemption Date;
(ii) the Redemption Price and the amount of accumulated and
unpaid Distributions to be paid on the Redemption Date;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the total Liquidation Amount of the
particular Trust Securities to be redeemed; and
(v) that on the Redemption Date the Redemption Price plus
accumulated and unpaid Distributions to the Redemption Date will
become due and payable upon each such Trust Security to be redeemed
and that Distributions thereon will cease to accrue on and after said
date.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price plus accumulated and unpaid Distributions
to the Redemption Date with the proceeds from the contemporaneous
redemption of Debentures. Redemptions of the Trust Securities shall be made
and the Redemption Price plus accumulated and unpaid Distributions to the
Redemption Date shall be deemed payable on each Redemption Date only to the
extent that the Trust has funds immediately available in the Payment
Account for such payment.
(d) If the Property Trustee gives a notice of redemption in respect of
any Preferred Trust Securities, then, by 12:00 noon, New York City time, on
17
the Redemption Date, subject to Section 4.02(c), the Property Trustee shall
irrevocably deposit with the Paying Agent funds sufficient to pay the
applicable Redemption Price plus accumulated and unpaid Distributions to
the Redemption Date and will give the Paying Agent irrevocable instructions
and authority to pay the Redemption Price plus accumulated and unpaid
Distributions to the Redemption Date to the Holders thereof upon surrender
of their Preferred Trust Securities Certificates and Common Trust
Securities Certificates. Notwithstanding the foregoing, Distributions on
the Trust Securities with respect to Distribution Dates occurring on or
prior to the Redemption Date for any Trust Securities called for redemption
shall be payable to the Holders of such Trust Securities as they appear on
the Securities Register for the Trust Securities on the relevant record
dates for the related Distribution Dates. If notice of redemption shall
have been given and funds deposited as required, then on the Redemption
Date, all rights of Securityholders holding Trust Securities so called for
redemption will cease, except the right of such Securityholders to receive
the Redemption Price plus accumulated and unpaid Distributions to the
Redemption Date thereof, but without interest thereon, and such Trust
Securities will cease to be Outstanding. In the event that any Redemption
Date is not a Business Day, then payment of the Redemption Price payable on
such date plus accumulated and unpaid Distributions to such Redemption Date
shall be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such delay) with
the same force and effect as if made on such date. In the event that
payment of the Redemption Price plus accumulated and unpaid Distributions
in respect of any Trust Securities called for redemption is improperly
withheld or refused and not paid either by the Trust or by the Depositor
pursuant to the Guarantee, Distributions on such Trust Securities will
continue to accrue, at the then applicable rate, from the Redemption Date
originally established by the Trust for such Trust Securities to the date
such Redemption Price plus accumulated and unpaid Distributions is actually
paid, in which case the actual payment date will be deemed the date fixed
for redemption for purposes of calculating the Redemption Price plus
accumulated and unpaid Distributions to such date.
(e) Payment of the Redemption Price on the Trust Securities shall be
made to the Holders thereof as they appear on the Securities Register for
the Trust Securities on the Redemption Date.
(f) If less than all the Outstanding Trust Securities are to be
redeemed on a Redemption Date, then the aggregate Liquidation Amount of
Trust Securities to be redeemed shall be allocated to the Common Trust
Securities and to the Preferred Trust Securities in the proportion that the
aggregate Liquidation Amount of each is to the aggregate Liquidation Amount
of all outstanding Trust Securities. The particular Preferred Trust
Securities to be redeemed shall be selected not more than 60 days prior to
the Redemption Date by the Property Trustee from the Outstanding Preferred
Trust Securities not previously called for redemption, by such method as
the Property Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of portions (equal to $ or integral
--
multiples thereof) of the Liquidation Amount of Preferred Trust Securities
of a denomination larger than $ . The Property Trustee shall promptly
--
notify the Transfer Agent and Registrar in writing of the Preferred Trust
18
Securities selected for redemption and, in the case of any Preferred Trust
Securities selected for partial redemption, the Liquidation Amount thereof
to be redeemed. For all purposes of this Trust Agreement, unless the
context otherwise requires, all provisions relating to the redemption of
Preferred Trust Securities shall relate, in the case of any Preferred Trust
Securities redeemed or to be redeemed only in part, to the portion of the
Liquidation Amount of Preferred Trust Securities which has been or is to be
redeemed.
SECTION 4.03. SUBORDINATION OF COMMON TRUST SECURITIES. (a) Payment of
Distributions (including Additional Amounts, if applicable) on, and the
Redemption Price plus accumulated and unpaid Distributions of, the Trust
Securities, as applicable, shall be made pro rata based on the Liquidation
Amount of the Trust Securities; provided, however, that if on any Distribution
Date or Redemption Date an Event of Default shall have occurred and be
continuing, no payment of any Distribution (including Additional Amounts, if
applicable) on, or Redemption Price plus accumulated and unpaid Distributions
of, any Common Trust Security, and no other payment on account of the
redemption, liquidation or other acquisition of Common Trust Securities, shall
be made unless payment in full in cash of all accumulated and unpaid
Distributions (including Additional Amounts, if applicable) on all Outstanding
Preferred Trust Securities for all distribution periods terminating on or prior
thereto, or in the case of payment of the Redemption Price plus accumulated and
unpaid Distributions the full amount of such Redemption Price plus accumulated
and unpaid Distributions on all Outstanding Preferred Trust Securities, shall
have been made or provided for, and all funds immediately available to the
Property Trustee shall first be applied to the payment in full in cash of all
Distributions (including Additional Amounts, if applicable) on, or Redemption
Price plus accumulated and unpaid Distributions of, Preferred Trust Securities
then due and payable.
(b) In the case of the occurrence of any Event of Default resulting
from a Debenture Event of Default, the Holder of Common Trust Securities
will be deemed to have waived any such Event of Default under this Trust
Agreement until the effect of all such Events of Default with respect to
the Preferred Trust Securities have been cured, waived or otherwise
eliminated. Until all such Events of Default under this Trust Agreement
with respect to the Preferred Trust Securities have been so cured, waived
or otherwise eliminated, the Property Trustee shall act solely on behalf of
the Holders of the Preferred Trust Securities and not the Holder of the
Common Trust Securities, and only the Holders of the Preferred Trust
Securities will have the right to direct the Property Trustee to act on
their behalf.
SECTION 4.04. PAYMENT PROCEDURES. Payments in respect of the Preferred
Trust Securities shall be made by check mailed to the address of the Person
entitled thereto as such address shall appear on the Securities Register or, if
the Preferred Trust Securities are held by a Securities Depository, such
Distributions shall be made to the Securities Depository, which shall credit the
relevant Persons' accounts at such Securities Depository on the applicable
Distribution Dates. Payments in respect of the Common Trust Securities shall be
made in such manner as shall be mutually agreed between the Administrative
Trustees and the Holder of the Common Trust Securities.
SECTION 4.05. TAX RETURNS AND REPORTS. The Administrative Trustees
shall prepare (or cause to be prepared), at the Depositor's expense and
19
direction, and file all United States federal, state and local tax and
information returns and reports required to be filed by or in respect of the
Trust. In this regard, the Administrative Trustees shall (a) prepare and file
(or cause to be prepared or filed) the Internal Revenue Service Form 1041 (or
any successor form) required to be filed in respect of the Trust in each taxable
year of the Trust and (b) prepare and furnish (or cause to be prepared and
furnished) to each Securityholder the related Internal Revenue Service Form
1099, or any successor form or the information required to be provided on such
form. The Administrative Trustees shall provide the Depositor and the Property
Trustee with a copy of all such returns, reports and schedules promptly after
such filing or furnishing. The Trustees shall comply with United States federal
withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Securityholders under the Trust
Securities.
SECTION 4.06. PAYMENTS UNDER INDENTURE. Any amount payable hereunder
to any Holder of Preferred Trust Securities shall be reduced by the amount of
any corresponding payment such Holder has directly received pursuant to Section
808 of the Subordinated Indenture. Notwithstanding the provisions hereunder to
the contrary, Securityholders acknowledge that any Holder of Preferred Trust
Securities that receives payment under Section 808 of the Subordinated Indenture
may receive amounts greater than the amount such Holder may be entitled to
receive pursuant to the other provisions of this Trust Agreement.
ARTICLE V.
TRUST SECURITIES CERTIFICATES
SECTION 5.01. INITIAL OWNERSHIP. Upon the creation of the Trust by the
contribution by the Depositor pursuant to Section 2.03 and until the issuance of
the Trust Securities, and at any time during which no Trust Securities are
outstanding, the Depositor shall be the sole beneficial owner of the Trust.
SECTION 5.02. THE TRUST SECURITIES CERTIFICATES. The Trust Securities
Certificates shall be issued in denominations of $__ Liquidation Amount and
integral multiples thereof. The Trust Securities Certificates shall be executed
on behalf of the Trust by manual or facsimile signature of at least one
Administrative Trustee and, if executed on behalf of the Trust by facsimile
signature, the Preferred Trust Securities shall be countersigned by the Transfer
Agent and Registrar or its agent. Trust Securities Certificates bearing the
manual signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Trust and, if
executed on behalf of the Trust by facsimile signature, countersigned by the
Transfer Agent and Registrar or its agent, shall be validly issued and entitled
to the benefits of this Trust Agreement, notwithstanding that such individuals
or any of them shall have ceased to be so authorized prior to the delivery of
such Trust Securities Certificates or did not hold such offices at the date of
delivery of such Trust Securities Certificates. A transferee of a Trust
Securities Certificate shall become a Securityholder, and shall be entitled to
the rights and subject to the obligations of a Securityholder hereunder, upon
due registration of such Trust Securities Certificate in such transferee's name
pursuant to Section 5.04 or 5.12.
20
SECTION 5.03. EXECUTION AND DELIVERY OF TRUST SECURITIES CERTIFICATES.
On the Closing Date, [and in the event and to the extent the over-allotment
option granted by the Trust and the Depositor pursuant to the Underwriting
Agreement is exercised by the underwriters named therein, on each option closing
date,] the Administrative Trustees, or any one of them, shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.04 and 2.05, to be executed on behalf of the Trust, and in the case
of Preferred Trust Securities executed by facsimile signature, countersigned by
the Transfer Agent and Registrar, or its agent, and delivered to or upon the
written order of the Depositor signed by its chairman of the board, any of its
vice presidents or its treasurer, without further corporate action by the
Depositor, in authorized denominations. The Depositor agrees to indemnify,
defend and hold The Bank of New York harmless against any and all costs and
liabilities incurred without negligence arising out of or in connection with any
such countersigning by it.
SECTION 5.04. REGISTRATION OF TRANSFER AND EXCHANGE OF TRUST
SECURITIES CERTIFICATES. The Transfer Agent and Registrar shall keep or cause to
be kept, at the office or agency maintained pursuant to Section 5.08, a
Securities Register in which, subject to such reasonable regulations as it may
prescribe, the Transfer Agent and Registrar shall provide for the registration
of Preferred Trust Securities Certificates and the Common Trust Securities
Certificates (subject to Section 5.10 in the case of the Common Trust Securities
Certificates) and registration of transfers and exchanges of Preferred Trust
Securities Certificates as herein provided. ALLETE shall be the initial Transfer
Agent and Registrar.
Upon surrender for registration of transfer of any Preferred Trust
Securities Certificate at the office or agency maintained pursuant to Section
5.08, the Administrative Trustees, or any one of them, shall execute on behalf
of the Trust by manual or facsimile signature and, if executed on behalf of the
Trust by facsimile signature, cause the Transfer Agent and Registrar or its
agent to countersign and deliver, in the name of the designated transferee or
transferees, one or more new Preferred Trust Securities Certificates in
authorized denominations of a like aggregate Liquidation Amount. At the option
of a Holder, Preferred Trust Securities Certificates may be exchanged for other
Preferred Trust Securities Certificates in authorized denominations of the same
class and of a like aggregate Liquidation Amount upon surrender of the Preferred
Trust Securities Certificates to be exchanged at the office or agency maintained
pursuant to Section 5.08.
Every Preferred Trust Securities Certificate presented or surrendered
for registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Administrative Trustees and
the Transfer Agent and Registrar duly executed by the Holder or such Holder's
attorney duly authorized in writing. Each Preferred Trust Securities Certificate
surrendered for registration of transfer or exchange shall be canceled and
subsequently disposed of by the Administrative Trustees in accordance with
customary practice. The Trust shall not be required to (i) issue, register the
transfer of, or exchange any Preferred Trust Securities during a period
beginning at the opening of business 15 calendar days before the day of mailing
of a notice of redemption of any Preferred Trust Securities called for
redemption and ending at the close of business on the day of such mailing or
(ii) register the transfer of or exchange any Preferred Trust Securities so
selected for redemption, in whole or in part, except the unredeemed portion of
any such Preferred Trust Securities being redeemed in part.
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No service charge shall be made for any registration of transfer or
exchange of Preferred Trust Securities Certificates, but the Transfer Agent and
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Preferred Trust Securities Certificates.
SECTION 5.05. MUTILATED, DESTROYED, LOST OR STOLEN TRUST SECURITIES
CERTIFICATES. If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Transfer Agent and Registrar, or if the Transfer Agent and
Registrar shall receive evidence to its satisfaction of the destruction, loss or
theft of any Trust Securities Certificate and (b) there shall be delivered to
the Transfer Agent and Registrar and the Administrative Trustees such security
or indemnity as may be required by them to save each of them and the Depositor
harmless, then in the absence of notice that such Trust Securities Certificate
shall have been acquired by a bona fide purchaser, the Administrative Trustees,
or any one of them, on behalf of the Trust shall execute by manual or facsimile
signature and, if execution on behalf of the Trust is by facsimile signature,
countersigned by a Transfer Agent and Registrar or its agent; and the
Administrative Trustees, or any one of them, and, if executed on behalf of the
Trust by facsimile signature, countersigned by the Transfer Agent and Registrar
or its agent shall make available for delivery, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Trust Securities Certificate, a
new Trust Securities Certificate of like class, tenor and denomination. In
connection with the issuance of any new Trust Securities Certificate under this
Section, the Administrative Trustees or the Transfer Agent and Registrar may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith. Any duplicate Trust
Securities Certificate issued pursuant to this Section shall constitute
conclusive evidence of an ownership interest in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
SECTION 5.06. PERSONS DEEMED SECURITYHOLDERS. Prior to due
presentation of a Trust Securities Certificate for registration of transfer, the
Trustees and the Transfer Agent and Registrar, and any agent of the Trustee and
the Transfer Agent and Registrar, shall be entitled to treat the Person in whose
name any Trust Securities Certificate shall be registered in the Securities
Register as the owner of such Trust Securities Certificate for the purpose of
receiving Distributions and for all other purposes whatsoever, and neither the
Trustees nor the Transfer Agent and Registrar shall be bound by any notice to
the contrary.
SECTION 5.07. ACCESS TO LIST OF SECURITYHOLDERS' NAMES AND ADDRESSES.
The Administrative Trustees shall furnish or cause to be furnished (x) to the
Depositor, within 15 days after receipt by any Administrative Trustee of a
request therefor from the Depositor in writing and (y) to the Property Trustee,
promptly after receipt by any Administrative Trustee of a request therefor from
the Property Trustee in writing in order to enable the Property Trustee to
discharge its obligations under this Trust Agreement, a list, in such form as
the Depositor or the Property Trustee may reasonably require, of the names and
addresses of the Securityholders as of a recent date. If Holders of Trust
Securities Certificates evidencing ownership at such time and for the previous
six months not less than 25% of the Outstanding aggregate Liquidation Amount
apply in writing to any Administrative Trustee, and such application states that
the applicants desire to communicate with other Securityholders with respect to
their rights under this Trust Agreement or under the Trust Securities
Certificates and such application is accompanied by a copy of the communication
that such applicants propose to transmit, then the Administrative Trustees
22
shall, within five Business Days after the receipt of such application, afford
such applicants access during normal business hours to the current list of
Securityholders. Each Holder, by receiving and holding a Trust Securities
Certificate, shall be deemed to have agreed not to hold either the Depositor or
any Trustees accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
SECTION 5.08. MAINTENANCE OF OFFICE OR AGENCY. The Depositor shall or
shall cause the Transfer Agent and Registrar to maintain in the Borough of
Manhattan, The City of New York, an office or offices or agency or agencies
where Preferred Trust Securities Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Depositor, the Trust or the Transfer Agent and Registrar in respect of the
Trust Securities and the Trust Agreement may be served. The Depositor initially
designates The Bank of New York, 101 Barclay Street, New York, New York 10286 as
its principal office for such purposes. The Depositor shall or shall cause the
Transfer Agent and Registrar to give prompt written notice to the Depositor, the
Property Trustee and to the Securityholders of any change in the location of the
Securities Register or any such office or agency. If at any time the Depositor
shall fail to maintain such office or agency or shall fail to furnish the
Property Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Property Trustee, and the Depositor hereby appoints the Property Trustee its
agent and the agent of the Trust to receive all such presentations, surrenders,
notices and demands.
SECTION 5.09. APPOINTMENT OF PAYING AGENT. The Paying Agent shall make
distributions to Securityholders from the Payment Account and shall report the
amounts of such distributions to the Administrative Trustees and the Property
Trustee. Any Paying Agent shall have the revocable power to withdraw funds from
the Payment Account for the purpose of making the Distributions referred to
above. The Property Trustee shall be entitled to rely upon a certificate of the
Paying Agent stating in effect the amount of such funds so to be withdrawn and
that same are to be applied by the Paying Agent in accordance with this Section
5.09. The Administrative Trustees or any one of them may revoke such power and
remove the Paying Agent if the Administrative Trustee or any one of them
determines in its sole discretion that the Paying Agent shall have failed to
perform its obligations under this Trust Agreement in any material respect. The
Bank of New York is hereby appointed as the initial Paying Agent, and it may
choose any co-paying agent that is acceptable to the Administrative Trustees and
the Depositor. The Paying Agent shall be permitted to resign upon 30 days'
written notice to the Administrative Trustees and the Depositor. In the event of
the removal or resignation of The Bank of New York as Paying Agent, the
Administrative Trustees shall appoint a successor that is reasonably acceptable
to the Property Trustee and the Depositor to act as Paying Agent (which shall be
a bank, trust company or an Affiliate of the Depositor). The Administrative
Trustees shall cause such successor Paying Agent or any additional Paying Agent
appointed by the Administrative Trustees to execute and deliver to the Trustees
an instrument in which such successor Paying Agent or additional Paying Agent
shall agree with the Trustees that as Paying Agent, such successor Paying Agent
or additional Paying Agent will hold all sums, if any, held by it for payment to
the Securityholders in trust for the benefit of the Securityholders entitled
thereto until such sums shall be paid to such Securityholders. The Paying Agent
shall return all unclaimed funds to the Property Trustee and upon resignation or
23
removal of a Paying Agent such Paying Agent shall also return all funds in its
possession to the Property Trustee. The provisions of Sections 8.01, 8.03 and
8.06 shall apply to the Paying Agent appointed hereunder, and the Paying Agent
shall be bound by the requirements with respect to paying agents of securities
issued pursuant to the Trust Indenture Act. Any reference in this Trust
Agreement to the Paying Agent shall include any co-paying agent unless the
context requires otherwise.
SECTION 5.10. OWNERSHIP OF COMMON TRUST SECURITIES BY DEPOSITOR. On
the Closing Date, the Depositor shall acquire, and thereafter retain, beneficial
and record ownership of the Common Trust Securities. Except in connection with a
transaction involving the Depositor that would be permitted under Article Eleven
of the Subordinated Indenture, any attempted transfer of the Common Trust
Securities shall be void. The Administrative Trustees shall cause each Common
Trust Securities Certificate issued to the Depositor to contain a legend stating
"THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS PROVIDED IN THE TRUST
AGREEMENT". Common Trust Securities Certificates representing the Common Trust
Securities shall be issued to the Depositor in the form of a typewritten or
definitive Common Trust Securities Certificate.
SECTION 5.11. DEFINITIVE PREFERRED TRUST SECURITIES CERTIFICATES. Upon
initial issuance of the Preferred Trust Securities, the Definitive Preferred
Trust Securities Certificates shall be typewritten, printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable to
the Administrative Trustees, as evidenced by the execution thereof by the
Administrative Trustees, or any one of them. The Administrative Trustees, or any
one of them, shall execute on behalf of the Trust by manual or facsimile
signature, and, if executed by facsimile on behalf of the Trust, countersigned
by the Transfer Agent and Registrar or its agent, the Definitive Preferred Trust
Securities Certificates initially in accordance with the instructions of the
Depositor. Neither the Transfer Agent and Registrar nor any of the
Administrative Trustees shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions.
SECTION 5.12. BOOK-ENTRY SYSTEM. Some or all of the Preferred Trust
Securities may be registered in the name of a securities depository ("Securities
Depository") or a nominee therefor, and held in the custody of the Securities
Depository or a custodian thereof. In such event, a single certificate will be
issued and delivered to the Securities Depository for such Preferred Trust
Securities, in which case the Owners of such Preferred Trust Securities will not
receive physical delivery of certificates for Preferred Trust Securities. Except
as provided herein, all transfers of beneficial ownership interests in such
Preferred Trust Securities will be made by book-entry only, and no investor or
other party purchasing, selling or otherwise transferring beneficial ownership
of the Preferred Trust Securities will receive, hold or deliver any certificate
for Preferred Trust Securities. The Depositor, the Trustees and the Paying Agent
will recognize the Securities Depository or its nominee as the Holder of
Preferred Trust Securities for all purposes, including notices and voting.
The Administrative Trustees, at the direction and expense of the
Depositor, may from time to time appoint a Securities Depository or a successor
thereto and enter into a letter of representations or other agreement with such
Securities Depository to establish procedures with respect to the Preferred
Trust Securities. Any Securities Depository shall be a Clearing Agency.
24
The Depositor and the Trustees covenant and agree to meet the
requirements of a Securities Depository for the Preferred Trust Securities with
respect to required notices and other provisions of the letter of
representations or agreement executed with respect to such Preferred Trust
Securities.
Whenever the beneficial ownership of any Preferred Trust Securities is
determined through the books of a Securities Depository, the requirements in
this Trust Agreement of holding, delivering or transferring such Preferred Trust
Securities shall be deemed modified with respect to such Preferred Trust
Securities to meet the requirements of the Securities Depository with respect to
actions of the Trustees, the Depositor and the Paying Agent. Any provisions
hereof permitting or requiring delivery of such Preferred Trust Securities
shall, while such Preferred Trust Securities are in a book-entry system, be
satisfied by the notation on the books of the Securities Depository in
accordance with applicable state law.
SECTION 5.13. RIGHTS OF SECURITYHOLDERS. The legal title to the Trust
Property is vested exclusively in the Property Trustee (in its capacity as such)
in accordance with Section 2.09, and the Securityholders shall not have any
right or title therein other than an undivided beneficial interest in the assets
of the Trust conferred by their Trust Securities and they shall have no right to
call for any partition or division of property, profits or rights of the Trust
except as described below. The Trust Securities shall be personal property
giving only the rights specifically set forth therein and in this Trust
Agreement. The Preferred Trust Securities shall have no preemptive or similar
rights and when issued and delivered to Securityholders against payment of the
purchase price therefor will be fully paid and nonassessable undivided
beneficial interests in the assets of the Trust.
SECTION 5.14. CANCELLATION BY TRANSFER AGENT AND REGISTRAR. All Trust
Securities Certificates surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Transfer
Agent and Registrar, be delivered to the Transfer Agent and Registrar and, if
not theretofore cancelled, shall be promptly cancelled by the Transfer Agent and
Registrar. No Trust Securities Certificates shall be issued in lieu of or in
exchange for any Trust Securities Certificates cancelled as provided in this
Section, except as expressly permitted by this Trust Agreement. All cancelled
Trust Securities Certificates held by the Transfer Agent and Registrar shall be
disposed of in accordance with customary practices.
ARTICLE VI.
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.01. LIMITATIONS ON VOTING RIGHTS. (a) Except as provided in
this Section 6.01, in Section 10.03 and as otherwise required by law, no Holder
of Preferred Trust Securities shall have any right to vote or in any manner
otherwise control the administration, operation and management of the Trust or
the obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Trust Securities Certificates, be construed so as
to constitute the Securityholders from time to time as partners or members of an
association. If the Property Trustee fails to enforce its rights under the
Debentures or this Trust Agreement, a Holder of Preferred Trust Securities may
25
institute a legal proceeding directly against the Depositor to enforce the
Property Trustee's rights under the Debentures or this Trust Agreement, to the
fullest extent permitted by law, without first instituting any legal proceeding
against the Property Trustee or any other Person. Notwithstanding the foregoing,
a Holder of Preferred Trust Securities may directly institute a proceeding for
enforcement of payment to such Holder of principal of or interest on the
Debentures having a principal amount equal to the aggregate liquidation
preference amount of the Preferred Trust Securities of such Holder on or after
the due dates specified in the Debentures.
(b) So long as any Debentures are held by the Property Trustee, the
Trustees shall not (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee, or executing
any trust or power conferred on the Debenture Trustee with respect to such
Debentures, (ii) waive any past default which is waivable under Section 813
of the Subordinated Indenture, (iii) exercise any right to rescind or annul
a declaration that the principal of all the Debentures shall be due and
payable or (iv) consent to any amendment, modification or termination of
the Subordinated Indenture or the Debentures, where such consent shall be
required, without, in each case, obtaining the prior approval of the
Holders of at least 66-2/3% of the aggregate Liquidation Amount of the
Outstanding Preferred Trust Securities; provided, however, that where a
consent under the Subordinated Indenture would require the consent of each
Holder of Debentures affected thereby, no such consent shall be given by
any Trustee without the prior written consent of each Holder of Preferred
Trust Securities. The Trustees shall not revoke any action previously
authorized or approved by a vote of the Preferred Trust Securities, except
pursuant to a subsequent vote of the Preferred Trust Securities. The
Property Trustee shall notify all Holders of the Preferred Trust Securities
of any notice of default received from the Debenture Trustee with respect
to the Debentures. In addition to obtaining the foregoing approvals of the
Holders of the Preferred Trust Securities, prior to taking any of the
foregoing actions, the Property Trustee shall, at the expense of the
Depositor, obtain an Opinion of Counsel experienced in such matters to the
effect that the Trust will be classified as a "grantor trust" and not as an
association taxable as a corporation for United States federal income tax
purposes on account of such action.
(c) If any proposed amendment to the Trust Agreement provides for, or
the Trustees otherwise propose to effect, (i) any action that would
materially adversely affect the powers, preferences or special rights of
the Preferred Trust Securities, whether by way of amendment to the Trust
Agreement or otherwise, or (ii) the dissolution, winding-up or termination
of the Trust, other than pursuant to the terms of this Trust Agreement,
then the Holders of Outstanding Preferred Trust Securities as a class will
be entitled to vote on such amendment or proposal and such amendment or
proposal shall not be effective except with the approval of the Holders of
at least 66-2/3% in aggregate Liquidation Amount of the Outstanding
Preferred Trust Securities.
SECTION 6.02. NOTICE OF MEETINGS. Notice of all meetings of the
Holders of Preferred Trust Securities, stating the time, place and purpose of
the meeting, shall be given by the Administrative Trustees pursuant to Section
10.08 to each Holder of a Preferred Trust Security, at his registered address,
at least 15 days and not more than 90 days before the meeting. At any such
meeting, any business properly before the meeting may be so considered whether
26
or not stated in the notice of the meeting. Any adjourned meeting may be held as
adjourned without further notice.
SECTION 6.03. MEETINGS OF HOLDERS OF PREFERRED TRUST SECURITIES. No
annual meeting of Securityholders is required to be held. The Administrative
Trustees, however, shall call a meeting of Securityholders to vote on any matter
upon the written request of the Holders of 25% of the then Outstanding Preferred
Trust Securities (based upon their aggregate Liquidation Amount) and may, at any
time in their discretion, call a meeting of Holders of Preferred Trust
Securities to vote on any matters as to which the Holders of Preferred Trust
Securities are entitled to vote.
Holders of 50% of the then Outstanding Preferred Trust Securities
(based upon their aggregate Liquidation Amount), present in person or by proxy,
shall constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by the
Holders of Preferred Trust Securities present, in person or by proxy, holding
more than the lesser of (x) 66-2/3% of the then Outstanding Preferred Trust
Securities (based upon their aggregate Liquidation Amount) held by the Holders
of then Outstanding Preferred Trust Securities present, either in person or by
proxy, at such meeting and (y) 50% of the Outstanding Preferred Trust Securities
(based upon their aggregate Liquidation Amount) shall constitute the action of
the Securityholders, unless this Trust Agreement requires a greater number of
affirmative votes.
SECTION 6.04. VOTING RIGHTS. Securityholders shall be entitled to one
vote for each $ of Liquidation Amount represented by their Trust Securities in
--
respect of any matter as to which such Securityholders are entitled to vote.
SECTION 6.05. PROXIES, ETC. At any meeting of Securityholders, any
Securityholder entitled to vote thereat may vote by proxy, provided that no
proxy shall be voted at any meeting unless it shall have been placed on file
with the Administrative Trustees, or with such other officer or agent of the
Trust as the Administrative Trustees may direct, for verification prior to the
time at which such vote shall be taken. Only Securityholders of record shall be
entitled to vote. When Trust Securities are held jointly by several Persons, any
one of them may vote at any meeting in person or by proxy in respect of such
Trust Securities, but if more than one of them shall be present at such meeting
in person or by proxy, and such joint owners or their proxies so present
disagree as to any vote to be cast, such vote shall not be received in respect
of such Trust Securities. A proxy purporting to be executed by or on behalf of a
Securityholder shall be deemed valid unless challenged at or prior to its
exercise, or, if earlier, until eleven months after it is sent and the burden of
proving invalidity shall rest on the challenger.
SECTION 6.06. SECURITYHOLDER ACTION BY WRITTEN CONSENT. Any action
which may be taken by Securityholders at a meeting may be taken without a
meeting and without notice if Securityholders holding a majority of all
Outstanding Trust Securities entitled to vote in respect of such action (or such
larger proportion thereof as shall be required by any express provision of this
Trust Agreement) shall consent to the action in writing (based upon their
aggregate Liquidation Amount).
27
SECTION 6.07. RECORD DATE FOR VOTING AND OTHER PURPOSES. For the
purposes of determining the Securityholders who are entitled to notice of and to
vote at any meeting or to vote by written consent, or to participate in any
Distribution on the Trust Securities in respect of which a record date is not
otherwise provided for in this Trust Agreement, or for the purpose of any other
action, the Administrative Trustees may from time to time fix a date, not more
than 90 days prior to the date of any meeting of Securityholders or the payment
of Distribution or other action including action to be taken by written consent,
as the case may be, as a record date for the determination of the identity of
the Securityholders of record for such purposes.
SECTION 6.08. ACTS OF SECURITYHOLDERS. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Trust Agreement to be given, made or taken by Securityholders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Securityholders in person or by an agent duly
appointed in writing; and, except as otherwise expressly provided herein, such
action shall become effective when such instrument or instruments are delivered
to the Administrative Trustees. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Securityholders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Trust Agreement and (subject to Section
8.01) conclusive in favor of the Trustees, if made in the manner provided in
this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgements of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which any Trustee deems sufficient.
The ownership of Preferred Trust Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder to
take any action hereunder with regard to any particular Trust Security may do so
with regard to all or any part of the Liquidation Amount of such Trust Security
or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
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If any dispute shall arise between or among the Securityholders and
the Administrative Trustees with respect to the authenticity, validity or
binding nature of any request, demand, authorization, direction, consent, waiver
or other Act of such Securityholder or Trustee under this Article VI, then the
determination of such matter by the Property Trustee shall be conclusive with
respect to such matter.
SECTION 6.09. INSPECTION OF RECORDS. Subject to Section 5.07
concerning access to the list of Securityholders, upon reasonable notice to the
Administrative Trustees and the Property Trustee, the other records of the Trust
shall be open to inspection by Securityholders during normal business hours for
any purpose reasonably related to such Securityholder's interest as a
Securityholder.
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES OF THE PROPERTY
TRUSTEE AND THE DELAWARE TRUSTEE
SECTION 7.01. PROPERTY TRUSTEE. The Property Trustee hereby represents
and warrants for the benefit of the Depositor and the Securityholders that:
(a) the Property Trustee is a banking corporation or trust company
duly organized, validly existing and in good standing under the laws of the
State of New York;
(b) the Property Trustee has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and
delivered by the Property Trustee and constitutes the valid and legally binding
agreement of the Property Trustee enforceable against it in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(d) the execution, delivery and performance by the Property Trustee of
this Trust Agreement will not violate, conflict with or constitute a breach of
the Property Trustee's charter or by-laws; and
(e) the execution, delivery and performance by the Property Trustee of
this Trust Agreement does not require the consent or approval of, the giving of
notice to, or the registration with any Federal or New York banking authority.
SECTION 7.02. DELAWARE TRUSTEE. The Delaware Trustee represents and
warrants for the benefit of the Depositor and the Securityholders that:
(a) the Delaware Trustee is a banking corporation or trust company
duly organized, validly existing and in good standing under the laws of the
State of Delaware;
29
(b) the Delaware Trustee has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and
delivered by the Delaware Trustee and constitutes the valid and legally binding
agreement of the Delaware Trustee enforceable against it in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(d) the execution, delivery and performance by the Delaware Trustee of
this Trust Agreement will not violate the Delaware Trustee's charter or by-laws;
and
(e) the execution, delivery and performance by the Delaware Trustee of
this Trust Agreement does not require the consent or approval of, the giving of
notice to, or the registration with any Federal or Delaware banking authority.
ARTICLE VIII.
THE TRUSTEES
SECTION 8.01. CERTAIN DUTIES AND RESPONSIBILITIES. (a) (a) The duties
and responsibilities of the Trustees shall be restricted to those set forth in
the express provisions of this Trust Agreement and, in the case of the Property
Trustee, as provided in the Trust Indenture Act in respect of an indenture
trustee under that Act, and no implied covenants or obligations shall be read
into this Trust Agreement against any of the Trustees. For purposes of Sections
315(a) and 315(c) of the Trust Indenture act, the term "default" is hereby
defined as an Event of Default which has occurred and is continuing.
Notwithstanding the foregoing, no provision of this Trust Agreement shall
require any of the Trustees to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it. Notwithstanding anything
contained in this Trust Agreement to the contrary, the duties and
responsibilities of the Property Trustee under this Trust Agreement shall be
subject to the protections, exculpations and limitations on liability afforded
to the Property Trustee under this Trust Agreement, the Delaware Business Trust
Act, to the extent applicable, Rule 3a-7 under the Investment Company Act or any
successor rule thereunder, and to an indenture trustee under the Trust Indenture
Act. For the purposes of Section 315(d)(2) of the Trust Indenture Act, the term
"responsible officer" is hereby defined as a Responsible Officer and the
chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president, any assistant vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
and any assistant controller of the Property Trustee, or any other officer of
the Property Trustee customarily performing functions similar to those performed
by a Responsible Officer or any of the above designated officers and also means,
with respect to a particular corporate trust matter, any other officer to whom
30
such matter is referred because of his or her knowledge of and familiarity with
the particular subject. Whether or not therein expressly so provided, every
provision of this Trust Agreement relating to the conduct or affecting the
liability of or affording protection to the Trustees shall be subject to the
provisions of this Section 8.01.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the income and proceeds
from the Trust Property and only to the extent that there shall be sufficient
income or proceeds from the Trust Property to enable the Property Trustee or
Paying Agent to make payments in accordance with the terms hereof. Each
Securityholder, by its acceptance of a Trust Security, agrees that it will look
solely to the income and proceeds from the Trust Property to the extent
available for distribution to it as herein provided and that the Trustees are
not personally liable to it for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust Security. This
Section 8.01(b) does not limit the liability of the Trustees expressly set forth
elsewhere in this Trust Agreement or, in the case of the Property Trustee, in
the Trust Indenture Act.
(c) All duties and responsibilities of the Property Trustee contained
in this Trust Agreement are subject to the following:
(i) the Property Trustee's sole duty with respect to the custody,
safe keeping and physical preservation of the Trust Property 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, exculpations and limitations on liability afforded to the
Property Trustee under this Trust Agreement, the Trust Indenture Act,
the Delaware Business Trust Act and, to the extent applicable, Rule
3a-7 under the Investment Company Act or any successor rule
thereunder;
(ii) the Property Trustee shall have no duty or liability for or
with respect to the value, genuineness, existence or sufficiency of
the Trust Property or the payment of any taxes or assessments levied
thereon or in connection therewith;
(iii) the Property Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree with the
Depositor. Money held by the Property Trustee need not be segregated
from other funds held by it except in relation to the Payment Account
established by the Property Trustee pursuant to this Trust Agreement
and except to the extent otherwise required by law; and
(iv) the Property Trustee shall not be responsible for monitoring
the compliance by the Administrative Trustees or the Depositor with
their respective duties under this Trust Agreement, nor shall the
Property Trustee be liable for the default or misconduct of the
Administrative Trustees or the Depositor.
SECTION 8.02. NOTICE OF DEFAULTS. (a) Within ninety (90) days after
the occurrence of any default known to the Property Trustee, the Property
Trustee shall transmit, in the manner and to the extent provided in Section
10.08, notice of such default to the Securityholders and the Depositor, unless
31
such default shall have been cured or waived. For the purpose of this Section,
the term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default.
(b) Within five Business Days after receipt of notice of the Debenture
Issuer's exercise of its right to defer the payment of interest on the
Debentures pursuant to the Subordinated Indenture, an Administrative
Trustee shall transmit, in the manner and to the extent provided in Section
10.08, notice of such exercise to the Securityholders and the Property
Trustee.
SECTION 8.03. CERTAIN RIGHTS OF PROPERTY TRUSTEE. Subject to the
provisions of Section 8.01 and except as provided by law:
(a) the Property Trustee may rely and shall be protected in acting or
refraining from acting in good faith upon any resolution, Opinion of Counsel,
certificate, written representation of a Holder or transferee, certificate of
auditors or any other certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, appraisal, bond, debenture, note,
other evidence of indebtedness or other paper or document reasonably believed by
it to be genuine and to have been signed or presented by the proper party or
parties;
(b) if (i) in performing its duties under this Trust Agreement the
Property Trustee is required to decide between alternative courses of action or
(ii) in construing any of the provisions in this Trust Agreement the Property
Trustee finds the same ambiguous or inconsistent with any other provisions
contained herein or (iii) the Property Trustee is unsure of the application of
any provision of this Trust Agreement, then, except as to any matter as to which
the Preferred Trust Securityholders are entitled to vote under the terms of this
Trust Agreement, the Property Trustee shall deliver a notice to the Depositor
requesting written instructions of the Depositor as to the course of action to
be taken. The Property Trustee shall take such action, or refrain from taking
such action, as the Property Trustee shall be instructed in writing to take, or
to refrain from taking, by the Depositor; provided, however, that if the
Property Trustee does not receive such instructions of the Depositor within ten
Business Days after it has delivered such notice, or such reasonably shorter
period of time set forth in such notice (which to the extent practicable shall
not be less than two Business Days), it may, but shall be under no duty to, take
or refrain from taking such action not inconsistent with this Trust Agreement as
it shall deem advisable and in the best interests of the Securityholders, in
which event the Property Trustee shall have no liability except for its own bad
faith, negligence or willful misconduct;
(c) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Property
Trustee (unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, request and rely upon an Officers' Certificate
which, upon receipt of such request, shall be promptly delivered by the
Depositor or the Administrative Trustees;
(d) the Property Trustee may consult with counsel of its selection and
the written advice of such counsel or any Opinion of Counsel shall be full and
32
complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Property Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Trust Agreement at the request or
direction of any Securityholder pursuant to this Trust Agreement, unless such
Securityholder shall have offered to the Property Trustee reasonable security or
indemnity against the costs, expenses (including reasonable attorneys' fees and
expenses) and liabilities which might be incurred by it in complying with such
request or direction;
(f) the Property Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
approval, bond, debenture, note or other evidence of indebtedness or other paper
or document, but the Property Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit, and, if
the Property Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Depositor personally or by agent or attorney;
(g) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through its
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;
(h) the Property Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably believed by
it to be authorized or within the discretion or rights or powers conferred upon
it by this Trust Agreement;
(i) the Property Trustee shall not be charged with knowledge of any
default or Event of Default with respect to the Trust Securities unless either
(A) a Responsible Officer of the Property Trustee shall have actual knowledge of
the default or Event of Default or (B) written notice of such default or Event
of Default shall have been given to the Property Trustee at the Corporate Trust
Office of the Property Trustee by the Depositor, the Administrative Trustees or
by any Holder of the Trust Securities;
(j) no provision of this Trust Agreement shall be deemed to impose any
duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty or
obligation; and no permissive or discretionary power or authority available to
the Property Trustee shall be construed to be a duty;
(k) no provision of this Trust Agreement 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 the Property Trustee shall have reasonable grounds for
believing that the repayment of such funds or liability is not reasonably
33
assured to it under the terms of this Trust Agreement or adequate indemnity
against such risk or liability is not reasonably assured to it;
(l) 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 form) (or any rerecording,
refiling or registration thereof);
(m) the Property Trustee shall have the right at any time to seek
instructions concerning the administration of this Trust Agreement from any
court of competent jurisdiction; and
(n) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the Property
Trustee (i) may request instructions from the Holders of the Trust Securities,
which instructions may only be given by the Holders of the same Liquidation
Amount of the Trust Securities as would be entitled to direct the Property
Trustee under the terms of this Trust Agreement in respect of such remedies,
rights or actions, (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.
SECTION 8.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Trust Securities Certificates shall be
taken as the statements of the Trust, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as to
the title to, or value or condition of, the property of the Trust or any part
thereof, nor as to the validity or sufficiency of this Trust Agreement, the
Debentures or the Trust Securities. The Trustees shall not be accountable for
the use or application by the Trust of the proceeds of the Trust Securities.
SECTION 8.05. MAY HOLD SECURITIES. Any Trustee or any agent of any
Trustee or the Trust, in its individual or any other capacity, may become the
owner or pledgee of Trust Securities and, except as provided in the definition
of the term "Outstanding" in Article I, may otherwise deal with the Trust with
the same rights it would have if it were not a Trustee or such agent.
SECTION 8.06. COMPENSATION; FEES; INDEMNITY. The Depositor agrees:
(a) to pay to the Trustees from time to time reasonable compensation
for all services rendered by the Trustees hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and advances
incurred or made by the Trustees in accordance with any provision of this Trust
Agreement (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence (gross negligence, in the
case of any Administrative Trustee), bad faith or willful misconduct; and
34
(c) to indemnify each Trustee for, and to hold each Trustee harmless
against, any and all loss, damage, claims, liability or expense incurred without
negligence (gross negligence, in the case of any Administrative Trustee), bad
faith or willful misconduct on its part, arising out of or in connection with
the acceptance or administration of the trust or trusts under this Trust
Agreement, including the reasonable costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
As security for the performance of the obligations of the Depositor
under this Section, each of the Trustees shall have a lien prior to the Trust
Securities upon all property and funds held or collected by such Trustee as
such, except funds held in trust for the payment of Distributions on the Trust
Securities. "Trustee" for purposes of this Section shall include any predecessor
Trustee; provided, however, that the negligence, willful misconduct or bad faith
of any Trustee hereunder shall not affect the rights of any other Trustee
hereunder.
In addition to the rights provided to each Trustee pursuant to the
provisions of the immediately preceding paragraph of this Section 8.06, when a
Trustee incurs expenses or renders services in connection with an Event of
Default resulting from a Bankruptcy Event with respect to the Trust, the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The provisions of this Section 8.06 shall survive the termination of
this Trust Agreement.
SECTION 8.07. CERTAIN TRUSTEES REQUIRED; ELIGIBILITY. (a) There shall
at all times be a Property Trustee hereunder with respect to the Trust
Securities. The Property Trustee shall be a Person that has a combined capital
and surplus of at least $50,000,000. If any such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Property Trustee with respect to the Trust
Securities shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article VIII.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind such
entity.
(c) There shall at all times be a Delaware Trustee with respect to the
Trust Securities. The Delaware Trustee shall either be (i) a natural person
who is at least 21 years of age and a resident of the State of Delaware or
(ii) a legal entity with its principal place of business in the State of
Delaware that otherwise meets the requirements of applicable Delaware law
and that shall act through one or more persons authorized to bind such
entity.
35
SECTION 8.08. CONFLICTING INTERESTS. If the Property Trustee has or
shall acquire a conflicting interest within the meaning of the Trust Indenture
Act, the Property Trustee shall either eliminate such interest or resign, to the
extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Trust Agreement. For purposes of Section 310(b)(1)
of the Trust Indenture Act and to the extent permitted thereby, the Property
Trustee shall not be deemed to have a conflicting interest arising from its
capacity as trustee in respect of (i) the Subordinated Indenture, (ii) the
Guarantee, (iii) the Indenture (For Unsecured Subordinated Debt Securities
relating to Trust Securities), dated as of March 1, 1996 of the Depositor to The
Bank of New York, as trustee, (iv) the Guarantee Agreement, dated as of March 1,
1996 between the Depositor, and The Bank of New York, as trustee, or (v) the
Amended and Restated Trust Agreement, dated as of March 1, 1996 between the
Depositor, as depositor, The Bank of New York and several administrative
trustees, as trustees and the several Holders defined therein.
SECTION 8.09. CO-TRUSTEES AND SEPARATE TRUSTEE.
Unless an Event of Default shall have occurred and be continuing, at
any time or times, for the purpose of meeting the legal requirements of the
Trust Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Depositor and the Property Trustee
shall have power to appoint, and upon the written request of the Property
Trustee, the Depositor shall for such purpose join with the Property Trustee in
the execution, delivery, and performance of all instruments and agreements
necessary or proper to appoint, one or more Persons approved by the Property
Trustee either to act as co-trustee, jointly with the Property Trustee, of all
or any part of such Trust Property, or to act as separate trustee of any such
property, in either case with such powers as may be provided in the instrument
of appointment, and to vest in such Person or Persons in the capacity aforesaid,
any property, title, right or power deemed necessary or desirable, subject to
the other provisions of this Section. If the Depositor does not join in such
appointment within 15 days after the receipt by it of a request so to do, or in
case a Debenture Event of Default has occurred and is continuing, the Property
Trustee alone shall have power to make such appointment.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged, and delivered
by the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(1) The Trust Securities shall be executed and delivered and all
rights, powers, duties, and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, the Trustees designated for
such purpose hereunder, shall be exercised, solely by such Trustees.
36
(2) The rights, powers, duties, and obligations hereby conferred
or imposed upon the Property Trustee in respect of any property
covered by such appointment shall be conferred or imposed upon and
exercised or performed by the Property Trustee or by the Property
Trustee and such co-trustee or separate trustee jointly, as shall be
provided in the instrument appointing such co-trustee or separate
trustee, except to the extent that under any law of any jurisdiction
in which any particular act is to be performed, the Property Trustee
shall be incompetent or unqualified to perform such act, in which
event such rights, powers, duties, and obligations shall be exercised
and performed by such co-trustee or separate trustee.
(3) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may
accept the resignation of or remove any co-trustee or separate trustee
appointed under this Section 8.09, and, in case a Debenture Event of
Default has occurred and is continuing, the Property Trustee shall
have power to accept the resignation of, or remove, any such
co-trustee or separate trustee without the concurrence of the
Depositor. Upon the written request of the Property Trustee, the
Depositor shall join with the Property Trustee in the execution,
delivery, and performance of all instruments and agreements necessary
or proper to effectuate such resignation or removal. A successor to
any co-trustee or separate trustee so resigned or removed may be
appointed in the manner provided in this Section.
(4) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of any Trustee, or
any other such trustee hereunder.
(5) The Property Trustee shall not be liable by reason of any act
of a co-trustee or separate trustee hereunder.
(6) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate
trustee.
SECTION 8.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. No
resignation or removal of any Trustee (as the case may be, the "Relevant
Trustee") and no appointment of a successor Relevant Trustee pursuant to this
Article shall become effective until the acceptance of appointment by the
successor Relevant Trustee in accordance with the applicable requirements of
Section 8.11.
The Relevant Trustee may resign at any time by giving written notice
thereof to the Securityholders. If the instrument of acceptance by a successor
Relevant Trustee required by Section 8.11 shall not have been delivered to the
resigning Relevant Trustee within 30 days after the giving of such notice of
37
resignation, the resigning Relevant Trustee may petition any court of competent
jurisdiction for the appointment of a successor Relevant Trustee.
Unless a Debenture Event of Default shall have occurred and be
continuing, the Relevant Trustee may be removed at any time by Act of the Common
Trust Securityholder. If a Debenture Event of Default shall have occurred and be
continuing, the Property Trustee and the Delaware Trustee may be removed at such
time by Act of the Securityholders of a majority of the aggregate Liquidation
Amount of the Outstanding Preferred Trust Securities, delivered to the Property
Trustee and the Delaware Trustee (in their individual capacity and on behalf of
the Trust); provided, however, that any Administrative Trustee may be removed
solely by the Act of the Common Trust Securityholder.
If the Relevant Trustee shall resign, be removed or become incapable
of continuing to act as Relevant Trustee at a time when no Debenture Event of
Default shall have occurred and be continuing, the Common Trust Securityholder,
by Act of the Common Trust Securityholder delivered to the retiring Relevant
Trustee, shall promptly appoint a successor Relevant Trustee or Trustees, and
the retiring Relevant Trustee shall comply with the applicable requirements of
Section 8.11. If the Relevant Trustee shall resign, be removed or become
incapable of continuing to act as the Relevant Trustee at a time when a
Debenture Event of Default shall have occurred and be continuing, the Preferred
Trust Securityholders, by Act of the Preferred Trust Securityholders of a
majority in aggregate Liquidation Amount of the Outstanding Preferred Trust
Securities delivered to the retiring Relevant Trustee, shall promptly appoint a
successor Relevant Trustee or Trustees, and the Relevant Trustee shall comply
with the applicable requirements of Section 8.11; provided, however, that any
Administrative Trustee may be appointed solely by the Act of the Common Trust
Securityholder. If no successor Relevant Trustee shall have been so appointed by
the Common Trust Securityholders or the Preferred Trust Securityholders and
accepted appointment in the manner required by Section 8.11, any Securityholder
who has been a Securityholder of Trust Securities for at least six months may,
on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Relevant Trustee.
The Depositor shall give notice of each resignation and each removal
of the Relevant Trustee and each appointment of a successor Trustee to all
Securityholders in the manner provided in Section 10.08 and shall give notice to
the Depositor. Each notice shall include the name and address of the successor
Relevant Trustee and, in the case of the Property Trustee, the address of its
Corporate Trust Office.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Delaware Trustee who is
a natural person dies or becomes incompetent or incapacitated, the vacancy
created by such death, incompetence or incapacity may be filled by (i) the
unanimous act of remaining Administrative Trustees if there are at least two of
them or (ii) otherwise by the Depositor (with the successor in each case being
an individual who satisfies the eligibility requirements for Administrative
Trustees or Delaware Trustee, as the case may be, set forth in Section 8.07).
Additionally, notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event the Depositor reasonably believes that any
Administrative Trustee who is a natural person has become incompetent or
incapacitated, the Depositor, by notice to the remaining Trustees, may terminate
38
the status of such Person as an Administrative Trustee (in which case the
vacancy so created will be filled in accordance with the preceding sentence).
No Property Trustee or Delaware Trustee shall be liable for the acts
or omissions to act of any successor Property Trustee or Delaware Trustee.
SECTION 8.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. In case of the
appointment hereunder of a successor Relevant Trustee, the retiring Relevant
Trustee (if requested by the Depositor) and each successor Trustee shall execute
and deliver an amendment hereto wherein each successor Relevant Trustee shall
accept such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Relevant Trustee all the rights, powers, trusts and duties of the
retiring Relevant Trustee and (2) shall add to or change any of the provisions
of this Trust Agreement as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Relevant Trustee, it
being understood that nothing herein or in such amendment shall constitute such
Relevant Trustees co-trustees of the same trust and that each such Relevant
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Relevant Trustee
and upon the execution and delivery of such amendment the resignation or removal
of the retiring Relevant Trustee shall become effective to the extent provided
therein and each such successor Relevant Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Relevant Trustee; but, on request of the Trust or any
successor Relevant Trustee such retiring Relevant Trustee shall duly assign,
transfer and deliver to such successor Trustee all Trust Property, all proceeds
thereof and money held by such retiring Relevant Trustee hereunder with respect
to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the retiring
Relevant Trustee shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Relevant Trustee all such
rights, powers and trusts referred to in the first or second preceding
paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be qualified
and eligible under this Article VIII.
SECTION 8.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any Person into which the Property Trustee or the Delaware Trustee or
any Administrative Trustee or any Trustee that is not a natural person may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Relevant
Trustee shall be a party, or any Person succeeding to all or substantially all
the corporate trust business of such Relevant Trustee, shall be the successor of
such Relevant Trustee hereunder, provided such Person shall be otherwise
qualified and eligible under this Article VIII, without the execution or filing
of any paper, the giving of any notice or any further act on the part of any of
the parties hereto.
SECTION 8.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST DEPOSITOR OR
TRUST. If and when the Property Trustee shall be or become a creditor of the
39
Depositor or the Trust (or any other obligor upon the Debentures or the Trust
Securities), the Property Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against the Depositor or
Trust (or any such other obligor).
SECTION 8.14. REPORTS BY PROPERTY TRUSTEE. (a) The Property Trustee
shall transmit to Securityholders such reports concerning the Property Trustee
and its actions under this Trust Agreement as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
Such of those reports as are required to be transmitted by the Property Trustee
pursuant to Section 313(a) of the Trust Indenture Act shall be dated as of the
next preceding , and shall be transmitted no later than
------------ ----------
of each year, commencing .
----------------
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Property Trustee with each stock exchange upon
which the Trust Securities are listed, with the Commission and with the
Depositor. The Depositor will notify the Property Trustee when any Trust
Securities are listed on any stock exchange or of any delisting thereof.
SECTION 8.15. REPORTS TO THE PROPERTY TRUSTEE. The Depositor and the
Administrative Trustees on behalf of the Trust shall provide to the Property
Trustee such documents, reports and information, if any, 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.
Delivery of such reports, information and documents by the Depositor to the
Property Trustee is for informational purposes only and the Property Trustee's
receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Depositor's compliance with any of its covenants hereunder (as to which the
Property Trustee is entitled to rely exclusively on Officers' Certificates).
SECTION 8.16. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT. Each
of the Depositor and the Administrative Trustees on behalf of the Trust shall
provide to the Property Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Trust Agreement (including any covenants
compliance with which constitutes a condition precedent) that relate to any of
the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) of the Trust Indenture Act may be given in the form of an Officers'
Certificate.
SECTION 8.17. NUMBER OF TRUSTEES.
(a) The number of Trustees shall be six, provided that Depositor, by
written instrument, may increase or decrease the number of Administrative
Trustees.
(b) If a Trustee ceases to hold office for any reason and the number
of Administrative Trustees is not reduced pursuant to Section 8.17(a), or if the
number of Trustees is increased pursuant to Section 8.17(a), a vacancy shall
occur. The vacancy shall be filled with a Trustee appointed in accordance with
Section 8.10.
40
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul, dissolve or terminate the Trust. Whenever a vacancy in the number of
Administrative Trustees shall occur, until such vacancy is filled by the
appointment of an Administrative Trustee in accordance with Section 8.10, the
Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Agreement), shall have all the
powers granted to the Administrative Trustees and shall discharge all the duties
imposed upon the Administrative Trustees by this Trust Agreement.
SECTION 8.18. DELEGATION OF POWER.
(a) Any Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21 his
or her power for the purpose of executing any documents contemplated in Sections
2.07(a) and 2.07(c), including any registration statement or amendment thereto
filed with the Commission, or making any other governmental filing; and
(b) the Administrative Trustees shall have power to delegate from time
to time to such of their number the doing of such things and the execution of
such instruments either in the name of the Trust or the names of the
Administrative Trustees or otherwise as the Administrative Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
SECTION 8.19. 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
Trust Agreement shall not be liable to the Trust or to any other Covered Person
for its good faith reliance on the provisions of this Trust Agreement. The
provisions of this Trust Agreement, to the extent that they restrict the duties
and liabilities of 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 and subject to the
provisions of the Trust Indenture Act:
(i) whenever a conflict of interest exists or arises between an
Indemnified Person and any Covered Person; or
(ii) whenever this Trust Agreement 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 Trust 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
41
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 Trust Agreement 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) Unless otherwise expressly provided herein and subject to the
provisions of the Trust Indenture Act, whenever in this Trust Agreement 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 reasonably desires, including its own interests, and
shall have no duty or obligation to give any consideration to any
interest of or factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and shall not
be subject to any other or different standard imposed by this Trust
Agreement or by applicable law.
ARTICLE IX.
TERMINATION AND LIQUIDATION
SECTION 9.01. DISSOLUTION UPON EXPIRATION DATE. The Trust shall
automatically dissolve on (the "Expiration Date") and the
-----------------
Trustees shall take such action as is required by Section 9.04.
SECTION 9.02. EARLY TERMINATION. Upon the first to occur of any of the
following events (such first occurrence, an "Early Termination Event"):
(i) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor/Debenture Issuer;
(ii) the redemption of all of the Preferred Trust Securities;
(iii) an order for judicial dissolution of the Trust having been
entered by a court of competent jurisdiction;
(iv) the election by the Depositor to dissolve the Trust and,
after satisfaction of liabilities to creditors of the Trust,
distribute the Debentures to the Holders of Preferred Trust Securities
in liquidation of the Trust;
the Trust shall dissolve and the Trustees shall take such action as is required
by Section 9.04.
42
SECTION 9.03. TERMINATION. The respective obligations and
responsibilities of the Trust and the Trustees created hereby shall terminate
upon the latest to occur of the following: (i) the distribution by the Property
Trustee to Securityholders upon the liquidation of the Trust pursuant to Section
9.04, or upon the redemption of all of the Trust Securities pursuant to Section
4.02 or 9.04(d), of all amounts required to be distributed hereunder upon the
final payment of the Trust Securities; (ii) the payment of any expenses owed by
the Trust; and (iii) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders.
SECTION 9.04. Liquidation. (a) Upon the Expiration Date or if an Early
Termination Event specified in clause (i), (iii) or (iv) of Section 9.02 occurs,
after satisfaction of creditors of the Trust, if any, as provided by applicable
law, the Trust shall be liquidated by the Property Trustee as expeditiously as
the Property Trustee determines to be appropriate by distributing to each
Securityholder a Like Amount of Debentures, subject to Section 9.04(e). Notice
of liquidation shall be given by the Administrative Trustees by first-class
mail, postage prepaid, mailed not later than 30 nor more than 60 days prior to
the Liquidation Date to each Holder of Trust Securities at such Holder's address
appearing in the Securities Register. All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Debentures; and
(iii) provide such information with respect to the mechanics by
which Holders may exchange Trust Securities Certificates for
Debentures, or, if Section 9.04(e) applies, receive a Liquidation
Distribution, as the Administrative Trustees or the Property Trustee
shall deem appropriate.
(b) Except where Sections 9.02(ii), 9.04(d) or 9.04(e) apply, in order
to effect the liquidation of the Trust hereunder, and any resulting distribution
of the Debentures to Securityholders, the Property Trustee shall establish a
record date for such distribution (which shall be not more than 45 days prior to
the Liquidation Date) and, either itself acting as exchange agent or through the
appointment of a separate exchange agent, shall establish such procedures as it
shall deem appropriate to effect the distribution of Debentures in exchange for
the Outstanding Trust Securities Certificates.
(c) Except where Sections 9.02(ii), 9.04(d) or 9.04(e) apply, after
any Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) certificates representing a Like Amount of Debentures will,
after satisfaction of liabilities to creditors of the Trust, if any, as provided
by applicable law, be issued to Holders of Trust Securities Certificates, upon
surrender of such Trust Securities Certificates to the Administrative Trustees
or their agent for exchange, (iii) any Trust Securities Certificates not so
surrendered for exchange will be deemed to represent a Like Amount of
Debentures, accruing interest at the rate provided for in the Debentures from
the last Distribution Date on which a Distribution was made on such Trust
43
Securities Certificates until such Trust Securities Certificates are so
surrendered (and until such Trust Securities Certificates are so surrendered, no
payments or interest or principal will be made to Holders of Trust Securities
Certificates with respect to such Debentures) and (iv) all rights of
Securityholders holding Trust Securities will cease, except the right of such
Securityholders to receive, after satisfaction of liabilities to creditors of
the Trust, if any, as provided by applicable law, Debentures upon surrender of
Trust Securities Certificates.
(d) If at any time, a Tax Event shall occur and be continuing, and
either (i) in the opinion of counsel to the Depositor experienced in such
matters, there would in all cases, after effecting the dissolution of the Trust,
after satisfaction of liabilities to creditors of the Trust, if any, as provided
by applicable law, and the distribution of the Debentures to the Holders of the
Preferred Trust Securities in exchange therefor, be more than an insubstantial
risk that an Adverse Tax Consequence would continue to exist or (ii) the
Debentures are not held by the Trust, then the Depositor shall have the right to
redeem the Debentures, in whole but not in part, at any time within 90 days
following the occurrence of the Tax Event. Whether or not a Tax Event has
occurred, the Depositor has the right, at any time, to dissolve the Trust and,
after satisfaction of liabilities to creditors of the Trust, if any, as provided
by applicable law, cause the Debentures to be distributed to the Holders of the
Preferred Trust Securities and Common Trust Securities in liquidation of the
Trust on a pro rata basis.
(e) In the event that, notwithstanding the other provisions of this
Section 9.04, whether because of an order for dissolution entered by a court of
competent jurisdiction or otherwise, distribution of the Debentures in the
manner provided herein is determined by the Property Trustee not to be
practical, the Trust Property shall be liquidated, and the Trust shall be
wound-up, by the Property Trustee in such manner as the Property Trustee
determines. In such event, Securityholders will be entitled to receive out of
the assets of the Trust available for distribution to Securityholders, after
satisfaction of liabilities to creditors of the Trust, if any, as provided by
applicable law, an amount equal to the Liquidation Amount per Trust Security
plus accumulated and unpaid Distributions thereon to the date of payment (such
amount being the "Liquidation Distribution"). If, upon any such winding up, the
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts payable
by the Trust on the Trust Securities shall be paid on a pro rata basis (based
upon Liquidation Amounts). The Holder of Common Trust Securities will be
entitled to receive Liquidation Distributions upon any such winding-up or
termination pro rata (determined as aforesaid) with Holders of Preferred Trust
Securities, except that, if a Debenture Event of Default has occurred and is
continuing or if a Debenture Event of Default has not occurred solely by reason
of a requirement that time lapse or notice be given, the Preferred Trust
Securities shall have a priority over the Common Trust Securities.
ARTICLE X.
MISCELLANEOUS PROVISIONS
SECTION 10.01. GUARANTEE BY THE DEPOSITOR AND ASSUMPTION OF
OBLIGATIONS. Subject to the terms and conditions hereof, the Depositor
irrevocably and unconditionally guarantees to each Person to whom the Trust is
now or hereafter becomes indebted or liable (the "Beneficiaries"), and agrees to
44
assume liability for, the full payment, when and as due, of any and all
Obligations (as hereinafter defined) to such Beneficiaries. As used herein,
"Obligations" means any indebtedness, expenses or liabilities of the Trust,
other than obligations of the Trust to pay to Holders the amounts due such
Holders pursuant to the terms of the Preferred Trust Securities. This guarantee
and assumption is intended to be for the benefit, of, and to be enforceable by,
all such Beneficiaries, whether or not such Beneficiaries have received notice
hereof.
SECTION 10.02. LIMITATION OF RIGHTS OF SECURITYHOLDERS. The death,
incapacity, bankruptcy, dissolution or termination of any Person having an
interest, beneficial or otherwise, in a Trust Security shall not operate to
terminate this Trust Agreement, nor dissolve, terminate or annul the Trust, nor
entitle the legal representatives or heirs of such Person or any Securityholder
for such Person, to claim an accounting, take any action or bring any proceeding
in any court for a partition or winding up of the arrangements contemplated
hereby, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
SECTION 10.03. AMENDMENT.
(a) This Trust Agreement may be amended from time to time by the Trust
(on approval of a majority of the Administrative Trustees and the Depositor,
without the consent of any Securityholders or the other Trustees), (i) to cure
any ambiguity, correct or supplement any provision herein or therein which may
be inconsistent with any other provision herein or therein, or to make any other
provisions with respect to matters or questions arising under this Trust
Agreement, (ii) to change the name of the Trust or (iii) to modify, eliminate or
add to any provisions of this Trust Agreement to such extent as shall be
necessary to ensure that the Trust will not be classified for United States
federal income tax purposes other than as a "grantor trust" and not as an
association taxable as a corporation at any time that any Trust Securities are
outstanding or to ensure the Trust's exemption from the status of an "investment
company" under the Investment Company Act; provided, however, that such action
shall not adversely affect in any material respect the interests of any
Securityholder and, in the case of clause (i), any such amendments of this Trust
Agreement shall become effective when notice thereof is given to the
Securityholders.
(b) Except as provided in Sections 6.01(c) and 10.03(c), any provision
of this Trust Agreement may be amended by the Administrative Trustees and the
Depositor with (i) the consent of Holders of Trust Securities representing not
less than a majority (based upon Liquidation Amounts) of the outstanding Trust
Securities and (ii) receipt by the Trustees of an Opinion of Counsel to the
effect that such amendment or the exercise of any power granted to the Trustees
in accordance with such amendment will not affect the Trust's status as a
grantor trust for federal income tax purposes or the Trust's exemption from
status as an "investment company" under the Investment Company Act.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Securityholder, this Trust
Agreement may not be amended to (i) adversely change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
45
specified date or (ii) restrict the right of a Securityholder to institute suit
for the enforcement of any such payment on or after such date.
(d) Notwithstanding any other provisions of this Trust Agreement, no
amendment to this Trust Agreement may be made if, as a result of such amendment,
the Trust would not be classified as a "grantor trust" but an association
taxable as a corporation for United States federal income tax purposes or would
fail or cease to qualify for the exemption from status of an "investment
company" under the Investment Company Act afforded by Rule 3a-5 thereunder.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor and the Trustees, this Trust Agreement may
not be amended in a manner which imposes any additional obligation on the
Depositor or any Trustee or, in the case of the Trustees, which affects any of
their respective rights, duties or immunities hereunder.
(f) In the event that any amendment to this Trust Agreement is made,
the Administrative Trustees shall promptly provide to the Depositor a copy of
such amendment.
(g) The Property Trustee and the Delaware Trustee may join in the
execution of any amendment to the Trust Agreement and are entitled to rely upon
an Opinion of Counsel as conclusive evidence that any amendment to this Trust
Agreement entered into pursuant to this Section 10.03 is authorized or permitted
by, and conforms to, the terms of this Section 10.03, has been duly authorized
by and lawfully executed and delivered on behalf of the other requisite parties,
and that it is proper for the Property Trustee under the provisions of this
Section 10.03 to accept the additional trusts created thereby and, if so
requested, for the Property Trustee or the Delaware Trustee to join in the
execution thereof.
SECTION 10.04. SEPARABILITY. In case any provision in this Trust
Agreement or in the Trust Securities Certificates shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 10.05. GOVERNING LAW. THIS TRUST AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH
RESPECT TO THIS TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE (WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES).
SECTION 10.06. SUCCESSORS. This Trust Agreement shall be binding upon
and shall inure to the benefit of any successor to the Trust or the Relevant
Trustees or any of them, including any successor by operation of law.
SECTION 10.07. HEADINGS. The Article and Section headings are for
convenience only and shall not affect the construction of this Trust Agreement.
46
SECTION 10.08. NOTICE AND DEMAND. Any notice, demand or other
communication which by any provision of this Trust Agreement is required or
permitted to be given or served to or upon any Securityholder or the Depositor
may be given or served in writing by deposit thereof, postage prepaid, in the
United States mail, hand delivery or facsimile transmission, in each case,
addressed, (i) in the case of a Preferred Trust Securityholder, to such
Preferred Trust Securityholder as such Securityholder's name and address may
appear on the Securities Register and (ii) in the case of the Depositor, to
ALLETE, 30 West Superior Street, Duluth, Minnesota 55802-2093, Attention:
Treasurer, facsimile no. , with a copy to the Secretary, facsimile
-----------
no. . Such notice, demand or other communication to or upon a
-----------
Securityholder shall be deemed to have been sufficiently given or made, for all
purposes, upon hand delivery, mailing or transmission.
Any notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
the Trust, the Property Trustee, the Delaware Trustee or the Administrative
Trustees shall be given in writing addressed (until another address is published
by the Trust) as follows: (i) with respect to the Property Trustee or the
Delaware Trustee, The Bank of New York, 101 Barclay Street, Floor 21 West, New
York, New York 10286, Attention: Corporate Trust Department, with a copy to: The
Bank of New York (Delaware), White Clay Center, Route 273, Newark, Delaware
19711, Attention: Corporate Trust Department, and (ii) with respect to the Trust
or the Administrative Trustees, at the address above for notice to the
Depositor, marked "Attention: Administrative Trustees for "[Name of Trust]".
Such notice, demand or other communication to or upon the Trust or the Property
Trustee shall be deemed to have been sufficiently given or made only upon actual
receipt of the writing by the Trust or the Property Trustee.
SECTION 10.09. AGREEMENT NOT TO PETITION. Each of the Trustees and the
Depositor agrees for the benefit of the Securityholders that, until at least one
year and one day after the Trust has been terminated in accordance with Article
IX, it shall not file, or join in the filing of, a petition against the Trust
under any bankruptcy, reorganization, arrangement, insolvency, liquidation or
other similar law (including, without limitation, the United States Bankruptcy
Code) (collectively, "Bankruptcy Laws") or otherwise join in the commencement of
any proceeding against the Trust under any Bankruptcy Law. In the event the
Depositor takes action in violation of this Section 10.09, the Property Trustee
agrees, for the benefit of Securityholders, that it shall file an answer with
the bankruptcy court or otherwise properly contest the filing of such petition
by the Depositor against the Trust or the commencement of such action and raise
the defense that the Depositor has agreed in writing not to take such action and
should be estopped and precluded therefrom and such other defenses, if any, as
counsel for the Property Trustee or the Trust may assert. The provisions of this
Section 10.09 shall survive the termination of this Trust Agreement.
SECTION 10.10. CONFLICT WITH TRUST INDENTURE ACT. (a) This Trust
Agreement is subject to the provisions of the Trust Indenture Act that are
required or deemed to be part of this Trust Agreement and shall, to the extent
applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a trustee
for the purposes of the Trust Indenture Act.
47
(c) If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required or deemed to be included in this
Trust Agreement by any of the provisions of the Trust Indenture Act, such
required or deemed provision shall control.
(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the nature of the Trust Securities as equity securities
representing interests in the Trust.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY OR ON
BEHALF OF A SECURITYHOLDER, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF
ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE SECURITYHOLDER AND
ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS
AND PROVISIONS OF THIS TRUST AGREEMENT AND THE AGREEMENT OF THE TRUST, SUCH
SECURITYHOLDER AND SUCH OTHERS THAT THOSE TERMS AND PROVISIONS SHALL BE BINDING,
OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH
OTHERS.
48
IN WITNESS WHEREOF, the parties have caused this Amended and Restated
Trust Agreement to be duly executed, all as of the day and year first above
written.
ALLETE
(legally incorporated as Minnesota Power, Inc.)
By:
---------------------------------
Title:
THE BANK OF NEW YORK
as Property Trustee
By:
---------------------------------
Title:
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By:
---------------------------------
Title:
------------------------------------
solely in capacity as
--
Administrative Trustee
------------------------------------
solely in capacity as
--
Administrative Trustee
------------------------------------
solely in capacity as
--
Administrative Trustee
------------------------------------
solely in capacity as
--
Administrative Trustee
49
EXHIBIT A
CERTIFICATE OF TRUST
OF
ALLETE CAPITAL
--
THIS CERTIFICATE OF TRUST of ALLETE Capital (the "Trust"), dated as
--
of March 13, 2001, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. C. ss. 3801, et seq.).
1. Name. The name of the business trust being created hereby is ALLETE
Capital .
--
2. Delaware Trustee. The name and business address of the trustee of
the Trust with a principal place of business in the State of Delaware are The
Bank of New York (Delaware), White Clay Center, Route 273, Newark, New Castle
County, Delaware 19711.
3. Effective Date. This Certificate of Trust shall be effective as of
its filing with the Secretary of State of the State of Delaware.
A-1
IN WITNESS WHEREOF, the undersigned, being the only trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
THE BANK OF NEW YORK PHILIP R. HALVERSON
not in its individual capacity Not in his individual capacity
but solely as Trustee but solely as Trustee
By: By:
----------------------------- -----------------------------
Name:
Title:
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity
but solely as Trustee
By:
-----------------------------
Name:
Title:
A-2
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS
PROVIDED IN THE TRUST AGREEMENT
Certificate Number Number of Common Trust Securities
C-[ ]
Certificate Evidencing Common Trust Securities
of
ALLETE Capital
--
Common Trust Securities
(liquidation amount $ per Common Trust Security)
--
ALLETE Capital , a statutory business trust created under the laws
--
of the State of Delaware (the "Trust"), hereby certifies that ALLETE (legally
incorporated as Minnesota Power, Inc.) (the "Holder") is the registered owner of
( ) common securities of the Trust representing undivided beneficial
- ----- -----
interests in the assets of the Trust and designated the Common Trust Securities
(liquidation amount $ per Common Trust Security) (the "Common Trust
--
Securities"). Except as permitted by Section 5.10 of the Trust Agreement (as
defined below), the Common Trust Securities are not transferable and any
attempted transfer hereof shall be void. The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Common Trust
Securities are set forth in, and this certificate and the Common Trust
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of , as the same may be amended from time to
-----------------
time (the "Trust Agreement"), including the designation of the terms of the
Common Trust Securities as set forth therein. The Trust will furnish a copy of
the Trust Agreement to the Holder without charge upon written request to the
Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
B-1
IN WITNESS WHEREOF, an Administrative Trustee of the Trust has
executed this certificate for and on behalf of the Trust this day of
---
, .
- -------- ----
ALLETE CAPITAL
--
By:
--------------------------------
not in individual capacity,
----
but solely as Administrative Trustee
B-2
EXHIBIT C
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of between ALLETE (legally
-----------------
incorporated as Minnesota Power, Inc.), a Minnesota corporation ("ALLETE"), and
ALLETE Capital , a Delaware business trust (the "Trust").
--
WHEREAS, the Trust intends to issue its Common Trust Securities (the
"Common Trust Securities") to and receive Debentures from ALLETE and to issue
its % Trust Originated Preferred Securities (the "Preferred Trust
----
Securities") with such powers, preferences and special rights and restrictions
as are set forth in the Amended and Restated Trust Agreement of the Trust dated
as of as the same may be amended from time to time (the "Trust
-----------------
Agreement");
WHEREAS, ALLETE is the issuer of the Debentures;
NOW, THEREFORE, in consideration of the acceptance of the Preferred
Trust Securities by each holder thereof, which acceptance ALLETE hereby agrees
shall benefit ALLETE and which acceptance ALLETE acknowledges will be made in
reliance upon the execution and delivery of this Agreement, ALLETE, including in
its capacity as holder of the Common Trust Securities, and the Trust hereby
agree as follows:
ARTICLE I
Section 1.01. Assumption by ALLETE. Subject to the terms and
--------------------
conditions hereof, ALLETE hereby irrevocably and unconditionally assumes the
full payment, when and as due, of any and all Obligations (as hereinafter
defined) to each person or entity to whom the Trust is now or hereafter becomes
indebted or liable (the "Beneficiaries"). As used herein, "Obligations" means
any indebtedness, expenses or liabilities of the Trust, other than obligations
of the Trust to pay to holders of any Preferred Trust Securities the amounts due
such holders pursuant to the terms of the Preferred Trust Securities. This
Agreement is intended to be for the benefit of, and to be enforceable by, all
such Beneficiaries, whether or not such Beneficiaries have received notice
hereof.
Section 1.02. Term of Agreement. This Agreement shall terminate and be
-----------------
of no further force and effect upon the date on which there are no Beneficiaries
remaining; provided, however, that this Agreement shall continue to be effective
or shall be reinstated, as the case may be, if at any time any holder of
Preferred Trust Securities or any Beneficiary must restore payment of any sums
paid under the Preferred Trust Securities, under any Obligation, under the
Guarantee Agreement dated the date hereof by and between ALLETE and The Bank of
New York, as guarantee trustee, or under this Agreement for any reason
whatsoever. This Agreement is continuing, irrevocable, unconditional and
absolute.
Section 1.03. Waiver of Notice. ALLETE hereby waives notice of
----------------
acceptance of this Agreement and of any Obligation to which it applies or may
apply, and ALLETE hereby waives presentment, demand for payment, protest, notice
of nonpayment, notice of dishonor, notice of redemption and all other notices
and demands.
C-1
Section 1.04. No Impairment. The obligations, covenants, agreements
-------------
and duties of ALLETE under this Agreement shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or any
portion of the Obligations or for the performance of any other obligation under,
arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part of
the Beneficiaries to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Beneficiaries with respect to the Obligations or any
action on the part of the Trust granting indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Trust or any of the assets of the
Trust.
Neither the Trust nor any Beneficiary shall have any obligation to give notice
to, or obtain the consent of, ALLETE with respect to the happening of any of the
foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce this Agreement
-----------
directly against ALLETE and ALLETE waives any right or remedy to require that
any action be brought against the Trust or any other person or entity before
proceeding against ALLETE.
ARTICLE II
Section 2.01. Binding Effect. All of the obligations, covenants and
--------------
agreements contained in this Agreement shall bind the successors, assigns,
receivers, trustees and representatives of ALLETE and shall inure to the benefit
of the Beneficiaries and their successors and assigns.
Section 2.02. Amendment. So long as there remains any Beneficiary or
---------
any Preferred Trust Securities of any series shall be outstanding, this
Agreement shall not be modified or amended in any manner adverse to such
Beneficiary or to the holders of the Preferred Trust Securities.
Section 2.03. Notices. Any notice, request or other communication
-------
required or permitted to be given hereunder shall be given in writing by
delivering the same against receipt therefor by facsimile transmission
(confirmed by mail), telex or by registered or certified mail, addressed as
follows (and if so given, shall be deemed given when mailed or upon receipt of
an answer-back, if sent by telex), to wit:
ALLETE Capital
--
c/o , Administrative Trustee
--------------
30 West Superior Street
Duluth, Minnesota 55802-2093
Facsimile No.:
C-2
ALLETE
30 West Superior Street
Duluth, Minnesota 55802-2093
Facsimile No.:
Attention: Treasurer
Section 2.04. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD
TO CONFLICT OF LAWS PRINCIPLES).
C-3
THIS AGREEMENT is executed as of the day and year first above written.
ALLETE
(legally incorporated as Minnesota Power, Inc.)
By:
--------------------------------
Name:
Title:
ALLETE CAPITAL
--
By:
--------------------------------
not in his (her) individual capacity, but
solely as Administrative Trustee
C-4
[Clearing Agency Legend]
EXHIBIT D
Certificate Number Number of Preferred Trust Securities
P- CUSIP No.
Certificate Evidencing Preferred Trust Securities
of
ALLETE Capital
--
% Trust Originated Preferred Securities
----
(liquidation amount $ per Preferred Trust Security)
--
ALLETE Capital , a statutory business trust created under the laws
--
of the State of Delaware (the "Trust"), hereby certifies that (the
------------
"Holder") is the registered owner of ( ) Preferred Trust Securities of
----- -----
the Trust representing an undivided beneficial interest in the assets of the
Trust and designated the ALLETE Capital % Trust Originated Preferred
-- ----
Securities (liquidation amount $ per Preferred Trust Security) (the "Preferred
--
Trust Securities"). The Preferred Trust Securities are transferable on the books
and records of the Trust, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in proper form for transfer as
provided in Section 5.04 or 5.12 of the Trust Agreement (as defined below). The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Trust Securities are set forth in, and this
certificate and the Preferred Trust Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the Amended and
Restated Trust Agreement of the Trust dated as of , as the same
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may be amended from time to time (the "Trust Agreement"). The holder of this
certificate is entitled to the benefits of the Guarantee Agreement of ALLETE
(legally incorporated as Minnesota Power, Inc.), a Minnesota corporation, and
The Bank of New York, as guarantee trustee, dated as of , as
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the same may be amended from time to time (the "Guarantee") to the extent
provided therein. The Trust will furnish a copy of the Trust Agreement and the
Guarantee to the holder of this certificate without charge upon written request
to the Trust at its principal place of business or registered office.
Upon receipt of this certificate, the holder of this certificate is
bound by the Trust Agreement and is entitled to the benefits thereunder.
D-1
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust
has executed this certificate for and on behalf of the Trust.
Dated:
ALLETE Capital
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not in individual capacity, but solely
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as Administrative Trustee
Countersigned and Registered:
ALLETE
(legally incorporated as Minnesota Power, Inc.)
Transfer Agent and Registrar
By:
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(Authorized Signature)
D-2
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers
this Preferred Trust Security to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
of the Preferred Trust Securities represented by this Certificate and
irrevocably appoints attorney to transfer such Preferred Trust Securities
Certificate on the books of the
Trust. The attorney may substitute another to act for him or her.
Date:
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Signature:
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(Sign exactly as your name appears on the other side of this Preferred Trust
Securities Certificate)
Signature:________________________
(Sign exactly as your name appears on the other side of this Preferred Trust
Securities Certificate)