EXHIBIT 4.2
IN THE COUNTY COURT OF DOUGLAS COUNTY, NEBRASKA
IN THE MATTER OF THE KIEWIT ) Doc. 6 Page 297
ROYALTY TRUST INDENTURE, )
) ORDER
Hearing having been held in this court on September 23, 1994, upon
petition filed herein dated August 24, 1994, the court does find as follows:
1. The court has subject matter jurisdiction pursuant to Neb. Rev.
Stat. Section 30-2806.
2. Venue for this proceeding is proper in this county pursuant to
Neb. Rev. Stat. Section 30-2807 because, pursuant to Neb. Rev. Stat. Section
30-2801, the Trustee has its principal place of administration in Douglas
County, Nebraska.
3. Petitioner, FirsTier Bank, N.A., Omaha, Nebraska (formerly
known as Omaha National Bank) is the originally-named and duly-acting Trustee
of the Trust created under the Kiewit Royalty Trust Indenture dated June 10,
1982, a copy of which is attached as Exhibit "A" to the original petition
filed herein (hereinafter "Trust" or "Trust Indenture").
4. The name and address of the Grantor of such Trust is as
follows:
Peter Kiewit Sons', Inc.
1000 Kiewit Plaza
3555 Farnam Street
Omaha, Nebraska 68131
5. Names and addresses of all interested persons in this matter,
so far as are known or ascertainable with reasonable diligence by the
Petitioner, are as set forth in Exhibit "B" which is attached to the original
petition filed herein and which is incorporated herein by this reference.
6. The petition is properly before this court seeking to amend
certain provisions of the Trust as a matter of administrative efficiency, to
update certain provisions which are not applicable or which cannot be applied
currently, and to approve prior Trustee fees.
7. Paragraph 3.04 of the Trust Indenture restricts investments of
the Trust to "accounts or certificates of the Trustee" and requires a rate of
return determined in part by "master notes," which notes no longer exist.
8. Subsequent to execution of the Trust Indenture, the Nebraska
Legislature enacted Neb. Rev. Stat. Section 30-3206 which expands permissible
fiduciary investments for funds awaiting distribution to include "short-term
trust-quality investments."
9. Subsequent to the execution of the Trust Indenture, the
Nebraska Legislature also enacted Neb. Rev. Stat. Section 30-3205 which
provides that, upon appropriate terms in a trust instrument, a fiduciary may
invest in certain types of funds registered pursuant to the Investment Company
Act of 1940.
10. The elimination of any reference to master notes and the
authorization for the Trustee to invest in government obligations,
government-secured obligations, and funds registered pursuant to the
Investment Act of 1940, is consistent with the purpose and intent of the Trust
Indenture and is reasonably advisable for the best interests of the
beneficiaries of the Trust in light of changes in circumstances since
execution of the Trust.
11. The Trust Indenture currently requires that distributions are
to be made from the Trust to beneficiaries on a quarterly basis, but that the
amount of such distribution is to accrue on a monthly basis. This incongruity
requires duplicative time-consuming recordkeeping on the part of the Trustee
and can serve to frustrate beneficiaries who make gifts of their Trust
interests believing that such gifts include the next income distribution.
12. Accruing and making distributions on a quarterly basis would be
in the best interests of the beneficiaries of this Trust and consistent with
the purposes of this Trust.
13. For the period of July 1987 through April 1990, the Trustee
invested in certain "12b-1 money market funds." During this period, the
Trustee received a fee directly from the fund in addition to its regular
Trustee fee. The 12b-1 investments resulted in a slightly higher net rate of
return to the Trust for the period than would have otherwise been earned by
the Trust.
14. The Comptroller of the Currency requires that a bank trustee
obtain court approval or other authorization for such fees. The 12b-1 fees as
set forth on Exhibit "D" as attached to the original petition filed herein
amount to one-quarter of one percent of the net asset value of the funds so
invested. These fees are reasonable and appropriate.
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WHEREFORE, the court does hereby order and decree:
A. The findings above are hereby incorporated into this Order as
fully as if set forth herein.
B. For purposes of amending the investment restrictions of the
Kiewit Royalty Trust as set forth above, Paragraph 3.04 of the
Kiewit Royalty Indenture dated June 10, 1982 is hereby amended
to read as follows:
3.04 INVESTMENT OF CASH ON HAND. The Trustee may
invest cash being held as a reserve for liabilities or for
distribution at the next Payment Date in short-term
trust-quality investments, including time deposits of the
Trustee Bank and any open-ended management type investment
company or investment trust registered pursuant to the Federal
Investment Company Act of 1940 as amended, provided however,
that any such investment by the Trustee must mature on or
before the next succeeding distribution date as provided in
Section 5.02 and such investment must be held until maturity,
and the Trustee may further invest in trust-quality fixed net
asset money market funds which have total assets of One Hundred
Million Dollars ($100,000,000.00) or more and which consist
solely of direct obligations of the United States Government
and/or next-business-day repurchase agreements fully
collateralized by direct obligations of the United States
Government.
C. For purposes of changing from monthly to quarterly
administration as set forth above, the following provisions of
the Kiewit Royalty Trust Indenture dated June 10, 1982, are
hereby amended to read as follows:
Paragraph 1.11: "Quarterly Record Date" for each quarter of a
fiscal year means the close of business on the last Business
Day of such quarter.
Paragraph 1.10: "Quarterly Distribution Amount" for each fiscal
year quarter means the excess, if any, of (a) the cash received
during such quarter which is attributable to the Royalties,
plus any decrease during such quarter in any cash reserve
theretofore established by the Trustee for the payment of
liabilities of the Trust, plus interest thereon received during
such quarter and any other cash receipts of the Trust during
such quarter, over (b) the liabilities of the Trust paid during
such quarter plus the amount of any cash reserve established or
increased by the Trustee for the payment of any future or
contingent liabilities of the Trust.
Paragraph 5.02: DISTRIBUTIONS. Within ten business days after
the end of each fiscal quarter, the Trustee shall, for the
immediately preceding fiscal quarter, distribute pro rata the
Quarterly Distribution Amount for such immediately preceding
quarter, to the certificate holders of record on the Quarterly
Record Date for such quarter.
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Paragraph 5.03: The Trustee intends to treat all income and
deductions of the Trust for each quarter as having been
realized on the Quarterly Record Date for such quarter unless
otherwise advised by counsel or the Internal Revenue Service.
Additionally, reference to "Monthly Record Date" in paragraph
4.02 and Paragraph 4.04 shall be changed to "Quarterly Record
Date."
D. The 12b-1 fees received by the Trustee for the period of July
1987 through April 1990, as further itemized on Exhibit "D"
attached to the original petition filed herein in these
proceedings, are hereby approved.
DATED this 23rd day of September 1994.
BY THE COURT:
/s/ S. Cooper
----------------------------
County Court Judge
Prepared and Submitted:
Nick R. Taylor (#16695)
FITZGERALD, SCHORR, BARMETTLER
& BRENNAN, P.C.
1000 Woodmen Tower
Omaha, Nebraska 68102
(402) 342-1000
ATTORNEYS FOR PETITIONER
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