Form of Amended and Restated
Declaration of Trust for PSCO Capital Trust I
among
PUBLIC SERVICE COMPANY OF COLORADO
(as Depositor)
The Bank of New York
(as Property Trustee)
The Bank of New York (Delaware)
(as Delaware Trustee)
and
THE ADMINISTRATIVE TRUSTEE NAMED HEREIN
Dated as of _______, 1998
TABLE OF CONTENTS
Page
----
ARTICLE I Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Section 1.01. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE II Continuation of the Trust. . . . . . . . . . . . . . . . . . . . . . . .8
Section 2.01. Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
Section 2.02. Office of the Delaware Trustee; Principal Place of Business. . .8
Section 2.03. Initial Contribution of Trust Property; Expenses of the
Trust. . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
Section 2.04. Issuance of the Trust Securities . . . . . . . . . . . . . . . .9
Section 2.05. Purchase of Debentures . . . . . . . . . . . . . . . . . . . . 10
Section 2.06. Declaration. . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2.07. Authorization to Enter into Certain Transactions . . . . . . . 10
Section 2.08. Assets of Trust. . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2.09. Title to Trust Property. . . . . . . . . . . . . . . . . . . . 14
ARTICLE III Payment Account . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 3.01. Payment Account. . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE IV Distributions; Redemption. . . . . . . . . . . . . . . . . . . . . . . 15
Section 4.01. Distributions. . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4.02. Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 4.03. Subordination of Common Securities . . . . . . . . . . . . . . 18
Section 4.04. Payment Procedures . . . . . . . . . . . . . . . . . . . . . . 18
Section 4.05. Tax Returns and Reports. . . . . . . . . . . . . . . . . . . . 19
Section 4.06. Payments under Indenture . . . . . . . . . . . . . . . . . . . 19
ARTICLE V Trust Securities Certificates . . . . . . . . . . . . . . . . . . . . . 19
Section 5.01. Initial Ownership. . . . . . . . . . . . . . . . . . . . . . . 19
Section 5.02. The Trust Securities Certificates. . . . . . . . . . . . . . . 19
Section 5.03. Delivery of Trust Securities Certificates. . . . . . . . . . . 20
Section 5.04. Registration of Transfer and Exchange of Preferred Securities
Certificates . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 5.05. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 5.06. Persons Deemed Securityholders . . . . . . . . . . . . . . . . 21
Section 5.07. Access to List of Securityholders' Names and Addresses . . . . 21
Section 5.08. Maintenance of Office or Agency. . . . . . . . . . . . . . . . 21
Section 5.09. Appointment of Paying Agent. . . . . . . . . . . . . . . . . . 22
Section 5.10. Transfer of Securities . . . . . . . . . . . . . . . . . . . . 22
Section 5.11. Book-Entry Preferred Securities Certificates; Common
Securities Certificate . . . . . . . . . . . . . . . . . . . 23
Section 5.12. Definitive Preferred Securities Certificates . . . . . . . . . 23
Section 5.13. Rights of Securityholders. . . . . . . . . . . . . . . . . . . 23
-i-
Page
----
ARTICLE VI Acts of Securityholders; Meetings; Voting. . . . . . . . . . . . . . . 24
Section 6.01. Limitations on Voting Rights . . . . . . . . . . . . . . . . . 24
Section 6.02. Notice of Meetings . . . . . . . . . . . . . . . . . . . . . . 24
Section 6.03. Meetings of Preferred Securityholders. . . . . . . . . . . . . 25
Section 6.04. Voting Rights. . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 6.05. Proxies, etc . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 6.06. Securityholder Action by Written Consent . . . . . . . . . . . 25
Section 6.07. Record Date for Voting and Other Purposes. . . . . . . . . . . 26
Section 6.08. Acts of Securityholders. . . . . . . . . . . . . . . . . . . . 26
Section 6.09. Inspection of Records. . . . . . . . . . . . . . . . . . . . . 27
ARTICLE VII The Trustees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 7.01. Certain Duties and Responsibilities. . . . . . . . . . . . . . 27
Section 7.02. Notice of Defaults; Direct Action by Securityholders . . . . . 28
Section 7.03. Certain Rights of Property Trustee . . . . . . . . . . . . . . 28
Section 7.04. Not Responsible for Recitals or Issuance of Securities . . . . 29
Section 7.05. May Hold Securities. . . . . . . . . . . . . . . . . . . . . . 29
Section 7.06. Compensation; Indemnity; Fees. . . . . . . . . . . . . . . . . 29
Section 7.07. Corporate Property Trustee Required; Eligibility of Trustees . 32
Section 7.08. Conflicting Interests. . . . . . . . . . . . . . . . . . . . . 32
Section 7.09. Co-Trustees and Separate Trustee . . . . . . . . . . . . . . . 32
Section 7.10. Resignation and Removal; Appointment of Successor. . . . . . . 34
Section 7.11. Acceptance of Appointment by Successor . . . . . . . . . . . . 35
Section 7.12. Merger, Conversion, Consolidation or Succession to Business. . 36
Section 7.13. Preferential Collection of Claims Against Depositor or Trust . 36
Section 7.14. Reports by Property Trustee. . . . . . . . . . . . . . . . . . 36
Section 7.15. Reports to the Property Trustee. . . . . . . . . . . . . . . . 36
Section 7.16. Evidence of Compliance with Conditions Precedent . . . . . . . 36
Section 7.17. Statements Required in Officers' Certificate and Opinion of
Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 7.18. Number of Trustees . . . . . . . . . . . . . . . . . . . . . . 37
Section 7.19. Delegation of Power. . . . . . . . . . . . . . . . . . . . . . 38
Section 7.20. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE VIII Dissolution and Liquidation. . . . . . . . . . . . . . . . . . . . . 38
Section 8.01. Dissolution Upon Expiration Date . . . . . . . . . . . . . . . 38
Section 8.02. Early Dissolution. . . . . . . . . . . . . . . . . . . . . . . 38
Section 8.03. Dissolution. . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 8.04. Liquidation. . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE IX Mergers, Etc.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 9.01. Mergers, Consolidations, Amalgamations or Replacements
of the Trust . . . . . . . . . . . . . . . . . . . . . . . . 40
-ii-
Page
----
ARTICLE X Miscellaneous Provisions. . . . . . . . . . . . . . . . . . . . . . . . 41
Section 10.01. Limitation of Rights of Securityholders . . . . . . . . . . . 41
Section 10.02. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 10.03. Severability. . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 10.04. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 10.05. Certain Accounting Matters. . . . . . . . . . . . . . . . . . 43
Section 10.06. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 10.07. Payments Due on Non-Business Day. . . . . . . . . . . . . . . 43
Section 10.08. Successors and Assigns. . . . . . . . . . . . . . . . . . . . 43
Section 10.09. Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 10.10. Reports, Notices and Demands. . . . . . . . . . . . . . . . . 43
Section 10.11. Agreement Not to Petition . . . . . . . . . . . . . . . . . . 44
Section 10.12. Trust Indenture Act; Conflict with Trust Indenture Act. . . . 44
Section 10.13. Acceptance of Terms of Declaration, Guarantee and Indenture . 45
ARTICLE XI Representations of Property Trustee and Delaware Trustee . . . . . . . 45
Section 11.01. Representations and Warranties of Property Trustee. . . . . . 45
Section 11.02. Representations and Warranties of Delaware Trustee. . . . . . 46
-iii-
PSCO Capital Trust I
Certain Sections of this Declaration of Trust relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939
Trust Indenture Declaration of Trust
Act Section Section
----------- -------
Sections 310 (a)(1). . . . . . . . . . . . . . . . . . . . . . . . . 7.07
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . 7.07
(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . 7.09
(a)(4). . . . . . . . . . . . . . . . . . . . . 2.07(a)(ii)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08
Sections 311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.13
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.13
Sections 312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 5.07
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 5.07
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 5.07
Sections 313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.14
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.14
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.14
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.14
Sections 314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.15
(b) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1). . . . . . . . . . . . . . . . . . . . . . 7.16, 7.17
(c)(2). . . . . . . . . . . . . . . . . . . . . . 7.16, 7.17
(c)(3). . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.17
Sections 315 (a) . . . . . . . . . . . . . . . . . . . . 7.01(a), 7.03(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . 7.02, 10.08
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . 7.01, 7.03
(e) . . . . . . . . . . . . . . . . . . . . . Not Applicable
Sections 316 (a) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(1)(A) . . . . . . . . . . . . . . . . . . Not Applicable
(a)(1)(B) . . . . . . . . . . . . . . . . . . Not Applicable
(a)(2). . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . . . . . . . . . . Not Applicable
-iv-
Trust Indenture Declaration of Trust
Act Section Section
----------- -------
Sections 317 (a)(1). . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(2). . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 5.09
Sections 318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 10.10
- --------------------
Note: This reconciliation and tie sheet shall not, for any purpose, be
deemed to be a part of the Declaration of Trust.
-v-
AMENDED AND RESTATED DECLARATION of PSCO Capital Trust I (the "Trust"),
dated as of ___________, 1998 among (i) Public Service Company of Colorado, a
Colorado corporation (the "Depositor"), (ii) The Bank of New York, a New York
banking corporation, as trustee (the "Property Trustee"), (iii) The Bank of New
York (Delaware), whose address in Delaware is White Clay Center, Route 273,
Newark, Delaware 19711, as Delaware trustee (the "Delaware Trustee"), (iv) Nancy
Felker, an individual whose address is 1225 17th Street, Suite 600, Denver,
Colorado 80502-5533 (the "Administrative Trustee") (the Property Trustee, the
Delaware Trustee and the Administrative Trustee are referred to collectively as
the "Trustees"), and (v) the several Holders, as hereinafter defined.
WITNESSETH:
WHEREAS, the Depositor, the Property Trustee, the Delaware Trustee and the
Administrative Trustee have heretofore duly declared and established a business
trust pursuant to the Delaware Business Trust Act by entering into a Declaration
of Trust, dated as of February 27, 1998 (the "Original Declaration"), and by
executing and filing with the Secretary of State of the State of Delaware a
Certificate of Trust on February 27, 1998, a form of which is attached hereto as
Exhibit A; and
WHEREAS, the Depositor, the Property Trustee, the Delaware Trustee and the
Administrative Trustee desire to amend and restate the Original Declaration in
its entirety as set forth herein to provide for, among other things, (i) the
issuance of the Common Securities, as hereinafter defined, by the Trust to the
Depositor, (ii) the issuance and sale of the Preferred Securities, as
hereinafter defined, by the Trust pursuant to the Underwriting Agreement, as
hereinafter defined, and (iii) the acquisition by the Trust from the Depositor
of the Debentures, as hereinafter defined.
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, as hereinafter defined, hereby amends
and restates the Original Declaration in its entirety and agrees as follows:
ARTICLE I
Defined Terms
Section 1.01. Definitions. For all purposes of this Declaration, except
as otherwise expressly provided or unless the context otherwise requires:
(a) each term defined in this Article I has the meaning assigned to
it in this Article I and includes the plural as well as the singular;
(b) each of the other terms used herein that is defined in the
Trust Indenture Act, either directly or by reference therein, has the meaning
assigned to it 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 Declaration; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Declaration as a whole and not to any particular
Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.08.
"Administrative Trustee" means the individual identified as the
"Administrative Trustee" in the preamble to this Declaration, solely in
his/her capacity as Administrative Trustee of the Trust and not in his/her
individual capacity, or such Administrative Trustee's successor in interest
in such capacity, or any successor trustee appointed as herein provided.
"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.
"Bankruptcy Event" means, with respect to any Person, the occurrence of
any of the following events:
(a) Such Person, pursuant to or within the meaning of any
Bankruptcy Law:
(i) commences a voluntary case or proceeding;
(ii) consents to the entry of an order for relief against it
in an involuntary case or proceeding;
(iii) consents to the appointment of a Custodian of it or for
all or substantially all of its property, and such Custodian is not
discharged within 60 days;
(iv) makes a general assignment for the benefit of its
creditors; or
(v) admits in writing its inability to pay its debts
generally as they become due; or
(b) A court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against such Person in an involuntary case
or proceeding;
(ii) appoints a Custodian of such Person for all or
substantially all of its properties; or
-2-
(iii) orders the liquidation of such Person,
and in each case the order or decree remains unstayed and in effect for 60
days.
"Bankruptcy Laws" means Title 11 of the United States Code, or similar
federal or state law for the relief of debtors.
"Board Resolution" means (i) 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 committee established
thereby and to be in full force and effect on the date of such certification
or (ii) a certificate signed by the authorized officer or officers of the
Depositor to whom the Depositor's Board of Directors or a committee
established thereby has delegated its authority, and in each case, delivered
to the Trustees.
"Book-Entry Preferred Securities Certificates" means certificates
representing Preferred Securities issued in global, fully registered form
with the Clearing Agency as described in Section 5.11.
"Business Day" means a day other than (a) a Saturday or Sunday, or (b) a
day on which banking institutions in The City of New York or the State of
Colorado are required by law or executive order to remain closed.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder. The
Depository Trust Company will be the initial Clearing Agency.
"Closing Date" means the Time of Delivery as defined in the Underwriting
Agreement, which date is also the date of execution and delivery of this
Declaration.
"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 Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this Declaration such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Security" means an undivided beneficial interest in the assets
of the Trust, having a Liquidation Amount of $25 and having the rights
provided therefor in this Declaration, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing ownership
of Common Securities, substantially in the form attached hereto as Exhibit B.
-3-
"Company Indemnified Person" means the Administrative Trustee or any
Affiliate, agent or representative thereof.
"Corporate Trust Office" means the principal corporate office of the
Property Trustee located in New York which at the date hereof is 101 Barclay
Street, Floor 21 West, New York, New York.
"Creditor" has the meaning specified in Section 2.03(d).
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator, custodian or similar official under any Bankruptcy Law.
"Debenture Event of Default" means an "Event of Default" as defined in
the Indenture with respect to the Debentures.
"Debenture Redemption Date" means "Redemption Date" as defined in the
Indenture with respect to the Debentures.
"Debenture Trustee" means The Bank of New York, a New York banking
corporation, in its capacity as trustee under the Indenture, or any successor
thereto appointed in accordance with the terms and provisions of the
Indenture.
"Debentures" means the Depositor's _____% Deferrable Interest
Subordinated Debentures due ____________ issued pursuant to the Indenture.
"Declaration" means this Amended and Restated Declaration, 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 Declaration 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 Declaration and any such modification, amendment or supplement,
respectively.
"Definitive Preferred Securities Certificates" means certificates
representing Preferred Securities issued in certificated, fully registered
form as described in Section 5.12.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. ss. 3801, et seq., as it may be amended from time
to time.
"Delaware Trustee" means the entity identified as the "Delaware Trustee"
in the preamble to this Declaration 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 Delaware Trustee appointed as
herein provided.
"Depositor" has the meaning specified in the preamble to this
Declaration.
-4-
"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.
"Event of Default" means the occurrence of a Debenture Event of Default
(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).
"Expiration Date" has the meaning specified in Section 8.01.
"Extension Period" means the period or periods in which pursuant to the
Indenture payments of interest on the Debentures are deferred by extending
the interest payment periods thereof.
"Guarantee" means the Preferred Securities Guarantee Agreement executed
and delivered by the Depositor to The Bank of New York, a New York banking
corporation, as trustee thereunder, contemporaneously with the execution and
delivery of this Declaration, for the benefit of the Holders of the Preferred
Securities, as amended from time, to time.
"Indenture" means the Indenture, dated as of ___________, 1998 between
the Depositor and the Debenture Trustee, as trustee thereunder, as amended or
supplemented from time to time, providing for the issuance of Subordinated
Debt Securities of the Depositor.
"Investment Company" means any company subject to the 1940 Act.
"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 (a) with respect to a redemption of Trust
Securities, Trust Securities having an aggregate Liquidation Amount equal to
the principal amount of Debentures to be paid in accordance with the
Indenture and (b) with respect to a distribution of Debentures to Holders of
Trust Securities in connection with a dissolution and liquidation of the
Trust, Debentures having a principal amount equal to the aggregate
Liquidation Amount of the Trust Securities in exchange for which such
Debentures are distributed.
"Liquidation Amount" means the stated amount of $25 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 8.04(a).
"Liquidation Distribution" has the meaning specified in Section 8.04(d).
-5-
"1940 Act" means the Investment Company Act of 1940, as amended.
"Officers' Certificate" means a certificate signed by the Chairman, the
President or any Senior or Executive Vice President, and the Treasurer, any
Assistant Treasurer, the Secretary or any Assistant Secretary of the
Depositor.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Trust, the Property Trustee or the Depositor or an Affiliate
of the Depositor, but not an employee of any thereof, and who shall be
acceptable to the Property Trustee.
"Original Declaration" has the meaning specified in the recitals to this
Declaration.
"Outstanding", when used with respect to Trust Securities, means, as of
the date of determination, all Trust Securities theretofore executed and
delivered under this Declaration, except:
(a) Trust Securities theretofore cancelled by the Administrative
Trustee or delivered to the Administrative Trustee for cancellation;
(b) Trust Securities for whose redemption money in the necessary
amount has been theretofore deposited with the Property Trustee or any Paying
Agent for the Holders of such Trust Securities; provided that, if such Trust
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Declaration;
(c) Trust Securities which have been paid or in exchange for or in
lieu of which other Trust Securities have been executed and delivered
pursuant to Section 5.05, other than any such Trust Securities in respect of
which there shall have been presented to the Property Trustee proof
satisfactory to it that such Trust Securities are held by a bona fide
purchaser; and
(d) as provided in Section 8.04(c);
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, Preferred 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 Securities which such
Trustee actually 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
Securities are owned by the Depositor, one or more of the Trustees and/or any
such Affiliate. Preferred Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Administrative Trustee the pledgee's right so to act with
respect to such Preferred Securities and that the pledgee is not the
Depositor or any Affiliate of the Depositor.
-6-
"Paying Agent" means the Property Trustee and any co-paying agent
appointed pursuant to Section 5.09.
"Payment Account" means a segregated non-interest-bearing corporate
trust account maintained by the Property Trustee in its trust department for
the benefit of the Securityholders in which all amounts paid to the Property
Trustee in respect of the Debentures or the Guarantee will be held and from
which the Property Trustee or such other Paying Agent shall make payments to
the Securityholders in accordance with Article 4.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Preferred Security" means a __% Trust Originated Preferred Security
issued by the Trust, constituting an undivided beneficial interest in the
assets of the Trust, having a Liquidation Amount of $25 and having rights
provided therefor in this Declaration, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate evidencing
ownership of one or more Preferred Securities, substantially in the form
attached hereto as Exhibit C.
"Pricing Agreement" means the pricing agreement dated
__________________, 1998 between the Trust, the Depositor and the
underwriters named therein with respect to the offer and sale of the
Preferred Securities.
"Property Trustee" means the commercial bank or trust company identified
as the "Property Trustee" in the preamble to this Declaration 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 Property
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
Declaration; provided that each Debenture Redemption Date and the stated
maturity of the Debentures shall be a Redemption Date for a Like Amount of
Trust Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions thereon to the Redemption Date.
"Securities Register" and "Securities Registrar" have the respective
meanings specified 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 is a beneficial owner within the meaning of the Delaware Business
Trust Act.
-7-
"Successor Securities" has the meaning specified in Section 9.01.
"Trust" means the Delaware business trust created pursuant to the
Original Declaration and continued hereby and identified on the cover page to
this Declaration.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this Declaration 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 (a) the Debentures, (b) any cash on deposit in,
or owing to, the Payment Account and (c) all proceeds and rights in respect
of the foregoing and any other property and assets for the time being held or
deemed to be held by the Property Trustee pursuant to the trusts of this
Declaration.
"Trust Security" means any one of the Common Securities or the Preferred
Securities.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Underwriting Agreement" means the Underwriting Agreement, dated
_____________, 1998 among the Trust, the Depositor and the Underwriters named
therein.
ARTICLE II
Continuation of the Trust
Section 2.01. Name. The Trust continued hereby shall be known as "PSCO
Capital Trust I" as such name may be modified from time to time by the
Administrative Trustee following written notice to the Holders of Trust
Securities and the other Trustees, 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 address of the Delaware Trustee in the State of Delaware is
White Clay Center, Route 273, Newark, Delaware 19711 or such other address in
the State of 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 c/o Public Service Company of Colorado, 1225 17th Street,
Denver, Colorado 80202.
Section 2.03. Initial Contribution of Trust Property; Expenses of the
Trust.
(a) The Property Trustee acknowledges receipt in trust from the
Depositor in connection with the Original Declaration of the sum of $10,
which constituted the initial Trust Property.
-8-
(b) The Depositor shall be responsible for and shall pay for all
obligations (other than with respect to the Trust Securities) and all costs
and expenses of the Trust (including, but not limited to, costs and expenses
relating to the organization of the Trust, the issuance and sale of the
Preferred Securities, the fees and expenses (including reasonable counsel
fees and expenses) of the Trustees as provided in Section 7.06, the costs and
expenses of accountants, attorneys, statistical or bookkeeping services,
expenses for printing and engraving and computing or accounting equipment,
Paying Agent(s), Securities Registrar, duplication, travel and telephone and
other telecommunications expenses and costs and expenses incurred in
connection with the disposition of the Trust Property).
(c) The Depositor will pay any and all taxes (other than United States
withholding taxes attributable to the Trust or its assets) and all
liabilities, costs and expenses with respect to such taxes of the Trust.
(d) The Depositor's obligations under this Section 2.03 shall be for the
benefit of, and shall be enforceable by, the Property Trustee and any Person
to whom any such obligations, costs, expenses and taxes are owed (a
"Creditor") whether or not such Creditor has received notice hereof. The
Property Trustee and any such Creditor may enforce the Depositor's
obligations under this Section 2.03 directly against the Depositor and the
Depositor irrevocably waives any right or remedy to require that the Property
Trustee or any such Creditor take any action against the Trust or any other
Person before proceeding against the Depositor. The Depositor agrees to
execute such additional agreements as may be necessary or desirable in order
to give full effect to the provisions of this Section 2.03.
(e) The Depositor shall make no claim upon the Trust Property for the
payment of such expenses.
(f) Except as expressly set forth in this Declaration, the Debentures,
the Guarantee and the terms of the Preferred Securities, the Depositor shall
not be personally liable for the return of any portion of the capital
contributions (or any return thereon) of the Holders of the Preferred
Securities which shall be made solely from the Trust Property, and shall not
be required to pay to the Trust or to any Holder of Preferred Securities any
deficit upon dissolution of the Trust or otherwise.
Section 2.04. Issuance of the Trust Securities. The Depositor, on
behalf of the Trust and pursuant to the Original Declaration, executed and
delivered the Underwriting Agreement and the Pricing Agreement.
Contemporaneously with the execution and delivery of this Declaration, the
Administrative Trustee, on behalf of the Trust, shall execute in accordance
with Section 5.02 and deliver to the Underwriters named in the Underwriting
Agreement one or more Book-Entry Preferred Securities Certificates,
registered in the name of the nominee of the initial Clearing Agency,
representing _________ Preferred Securities having an aggregate Liquidation
Amount of $___________, against receipt by the Property Trustee of the
aggregate purchase price of such Preferred Securities of $___________, which
amount the Administrative Trustee shall promptly deliver to the Property
Trustee. Contemporaneously therewith, the Administrative Trustee, on behalf
of the Trust, shall execute in accordance with Section 5.02 and deliver to
the Depositor a
-9-
Common Securities Certificate, registered in the name of the Depositor,
representing _______ Common Securities having an aggregate Liquidation Amount
of $_________, and in satisfaction of the purchase price of such Common
Securities the Depositor shall deliver to the Property Trustee the sum of
$_________.
Section 2.05. Purchase of Debentures. Contemporaneously with the
execution and delivery of this Declaration (i) the Administrative Trustee, on
behalf of the Trust, shall purchase $___________ aggregate principal amount
of Debentures from the Depositor, registered in the name of the Property
Trustee on behalf of the Securityholders and the Trust and (ii) in
satisfaction of the purchase price for such Debentures, the Property Trustee,
on behalf of the Trust, shall deliver to the Depositor the sum of
$___________.
Section 2.06. Declaration.
(a) The exclusive purposes and functions of the Trust are (1) to issue
and sell Trust Securities and use the gross proceeds from such sale to
acquire the Debentures, (2) to maintain the status of the Trust as a grantor
trust for United States Federal income tax purposes, and (3) except as
otherwise limited herein, to engage in only those activities necessary,
appropriate, convenient 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, and the Trustees hereby accept such
appointment. 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 Administrative Trustee shall
have all rights, powers and duties set forth herein. 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 Trustee 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.
(b) The Trust will be classified as a grantor trust for United States
federal income tax purposes under Subpart E of Subchapter J of the Code,
pursuant to which the Holders of the Preferred Securities and the Common
Securities will be the owners of the Trust for United States federal income
tax purposes, and such Holders will include directly in their gross income
the income, gain, deduction or loss of the Trust as if the Trust did not
exist. By the acceptance of this Trust neither the Trustees, the Depositor
nor the owners of the Preferred Securities or Common Securities will take any
position for United States federal income tax purposes which is contrary to
the classification of the Trust as a grantor trust.
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 Declaration. Subject to the limitations set forth in
paragraph (b) of this Section, and in accordance with the following
provisions (i) and (ii), the Trustees shall have the authority to enter into
all transactions and agreements determined by the Trustees to be appropriate
in exercising the
-10-
authority, express or implied, otherwise granted to the Trustees under this
Declaration, and to perform all acts in furtherance thereof, including
without limitation, the following:
(i) As among the Trustees, the Administrative Trustee shall have the
power and authority to act on behalf of the Trust with respect to the
following matters:
(A) executing and delivering the Trust Securities on behalf of
the Trust;
(B) causing the Trust to enter into, and executing, delivering
and performing on behalf of the Trust, such agreements as, in the
Administrative Trustee's opinion, may be necessary or desirable in
connection with the purposes and function of the Trust, including the
appointment of a depository and registrar as well as any successor
thereto;
(C) assisting in registering the Preferred Securities under the
Securities Act of 1933, as amended, under the Securities Exchange Act
of 1934, as amended, and under state securities or blue sky laws, and
qualifying this Declaration as a trust indenture under the Trust
Indenture Act;
(D) assisting in the listing of the Preferred Securities upon
such securities exchange or exchanges as the Depositor shall determine
and the registration of the Preferred Securities under the Securities
Exchange Act of 1934, as amended, and the preparation and filing of
all periodic and other reports and other documents pursuant to the
foregoing;
(E) acquiring the Debentures with the proceeds of the sale of the
Preferred Securities and the Common Securities; PROVIDED, HOWEVER,
that the Administrative Trustee shall cause legal title to the
Debentures to be held of record in the name of the Property Trustee
for the benefit of the Holders of the Preferred Securities, the Holder
of Common Securities and the Trust;
(F) to the extent provided in this Declaration, terminating and
liquidating the Trust and preparing, executing and filing the
certificate of cancellation with the Secretary of State of the State
of Delaware;
(G) sending notices or assisting the Property Trustee in sending
notices and other information regarding the Trust Securities and the
Debentures to Securityholders in accordance with this Declaration;
(H) employing or otherwise engaging employees and agents (who may
be designated as officers with titles) and managers, contractors,
advisors, and consultants and paying reasonable compensation for the
services provided by such Persons;
-11-
(I) causing the Trust to comply with the Trust's obligations
under the Trust Indenture Act;
(J) incurring expenses that are necessary, appropriate,
convenient or incidental to carry out any of the purposes of the
Trust;
(K) taking all action that may be necessary or appropriate for
the preservation and the continuation of the Trust's valid existence,
rights, franchises and privileges as a statutory business trust under
the laws of the State of Delaware and of each other jurisdiction in
which such existence is necessary to protect the limited liability of
the Holders of the Preferred Securities or to enable the Trust to
effect the purposes for which the Trust was created;
(L) taking all action necessary to cause all applicable tax
returns and tax information reports that are required to be filed with
respect to the Trust to be duly prepared and filed by the
Administrative Trustee, on behalf of the Trust;
(M) taking all actions and performing such duties as may be
required of the Administrative Trustee pursuant to the terms of this
Declaration; and
(N) taking any action incidental to the foregoing as the
Administrative Trustee may from time to time determine is necessary or
advisable to give effect to the terms of this Declaration for the
benefit of the Securityholders (without consideration of the effect of
any such action on any particular Securityholder).
Any expenses incurred by the Administrative Trustee pursuant to this
Section 2.07 shall be reimbursed by the Depositor.
(ii) 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 matters:
(A) establishing and maintaining the Payment Account and
appointing Paying Agents (subject to Section 5.09);
(B) receiving payment of the purchase price of the Trust
Securities;
(C) receiving and holding the Debentures;
(D) collecting interest and principal payments on the Debentures
and depositing them in the Payment Account;
(E) making Distributions and other payments to the
Securityholders in respect of the Trust Securities;
-12-
(F) exercising all of the rights, powers and privileges of a
holder of the Debentures;
(G) sending notices of defaults, redemptions, Extension Periods,
liquidations and other information regarding the Trust Securities and
the Debentures to the Securityholders in accordance with this
Declaration;
(H) to the extent provided in this Declaration, terminating and
liquidating the Trust, including distributing the Trust Property in
accordance with the terms of this Declaration, and preparing,
executing and filing the certificate of cancellation with the
Secretary of State of the State of Delaware;
(I) taking all action and performing such duties as may be
required of the Property Trustee pursuant to the terms of this
Declaration;
(J) after an Event of Default, taking any action incidental to
the foregoing as the Property Trustee may from time to time determine
is necessary or advisable to give effect to the terms of this
Declaration and 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); and
(K) registering transfers and exchanges of the Preferred
Securities in accordance with this Declaration (but only if at such
time the Property Trustee shall be the Securities Registrar).
(b) So long as this Declaration 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 acting on behalf of the Trust shall not
(i) acquire any assets or investments (other than the Debentures), reinvest
the proceeds derived from investments, possess any power or otherwise act in
such a way as to vary the Trust Property or engage in any activities not
authorized by this Declaration, (ii) sell, assign, transfer, exchange,
mortgage, 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, (iv) incur any indebtedness for borrowed money or issue any other
debt, (v) issue any securities or other evidences of beneficial ownership of,
or beneficial interests in, the Trust other than the Trust Securities, or
(vi) take or consent to any action that would result in the placement of a
Lien on any of the Trust Property. The Administrative Trustee 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 and sale of the Preferred Securities,
the Depositor 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 Declaration are hereby ratified and confirmed in all respects):
-13-
(i) preparing for filing, filing with the Commission and executing
on behalf of the Trust a registration statement on Form S-3 in relation to
the Preferred Securities, including any amendments thereto;
(ii) determining the States in which to take appropriate action to
qualify or register for sale all or part of the Preferred Securities and
doing any and all such acts, other than actions which must be taken by or
on behalf of the Trust, and advising the Trustees of actions they must take
on behalf of the Trust, and preparing 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;
(iii) preparing for filing, filing and executing on behalf of the
Trust an application to the New York Stock Exchange or any other national
stock exchange or The Nasdaq National Market for listing upon notice of
issuance of any Preferred Securities, and preparing for filing, filing and
executing on behalf of the Trust all other applications, statements,
certificates, agreements and other instruments as shall be necessary for
such listing;
(iv) preparing for filing, filing with the Commission and executing
on behalf of the Trust a registration statement on Form 8-A relating to the
registration of the Preferred Securities under Section 12(b) or 12(g) of
the Securities Exchange Act of 1934, as amended, including any amendments
thereto;
(v) negotiating the terms of, executing, delivering and performing
the Underwriting Agreement and the Pricing Agreement providing for the sale
of the Preferred Securities; and
(vi) taking any other actions necessary or desirable to carry out any
of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative
Trustee is authorized and directed to conduct the affairs of the Trust and to
operate the Trust so that (i) the Trust will not be deemed to be an
Investment Company required to be registered under the 1940 Act, or taxed as
a corporation or a partnership for United States Federal income tax purposes;
(ii) the Trust will qualify as a grantor trust for United States Federal
income tax purposes; and (iii) the Debentures will be treated as indebtedness
of the Depositor for United States Federal income tax purposes. In this
connection, the Depositor and the Administrative Trustee are authorized to
take any action, not inconsistent with applicable law, the Certificate of
Trust, as amended from time to time, or this Declaration, that each of the
Depositor and the Administrative Trustee determines in their discretion to be
necessary or desirable for such purposes.
Section 2.08. Assets of Trust. The assets of the Trust shall consist of
the Trust Property.
-14-
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 and the Trust in accordance with this Declaration.
ARTICLE III
Payment Account
Section 3.01. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall establish
the Payment Account. All monies and other property deposited or held from time
to time in the Payment Account shall be held by the Property Trustee for the
exclusive benefit of the Securityholders. The Property Trustee shall have
exclusive control of the Payment Account for the purpose of making deposits in
and withdrawals from the Payment Account in accordance with this Declaration;
provided that any Paying Agent shall have the right of withdrawal with respect
to the Payment Account solely for the purpose of making the payments
contemplated under Article 4.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on the Debentures and
any amounts paid to the Property Trustee pursuant to the Guarantee. Amounts
held in the Payment Account shall not be invested pending distribution
thereof.
ARTICLE IV
Distributions; Redemption
Section 4.01. Distributions.
(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 accumulate from _____________,
1998 and, except during an Extension Period for the Debentures pursuant to
the Indenture, shall be payable quarterly in arrears on March 31, June 30,
September 30 and December 31 of each year, commencing on June 30, 1998. If
any date on which Distributions are otherwise payable on the Trust Securities
is not a Business Day, then the payment of such Distributions 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), except that, if such Business
Day is in the next succeeding calendar year, payment of such Distributions
shall be made on the immediately preceding Business Day, 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) is referred
to as a "Distribution Date").
-15-
Within two Business Days after receipt by the Property Trustee of notice
of an Extension Period pursuant to the Indenture, the Property Trustee shall
give notice thereof to the Securityholders by first class mail, postage
prepaid.
(b) The Trust Securities represent undivided beneficial interests in the
Trust Property, and, subject to Sections 4.03 and 4.06 hereof, all
Distributions will be made pro rata on each of the Trust Securities.
Distributions on the Trust Securities shall be payable at a rate of _____%
per annum of the Liquidation Amount of the Trust Securities. The amount of
Distributions payable for any full quarterly period shall be computed on the
basis of a 360-day year of twelve 30-day months, and for any period shorter
than a full quarterly Distribution period for which Distributions are
computed, Distributions will be computed based on the actual number of days
elapsed per 90-day quarter. During an Extension Period for the Debentures,
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
Extension Period is equal to the aggregate amount of interest (including
interest payable on unpaid interest at the rate per annum set forth above,
compounded quarterly) that accrues during any such Extension Period on the
Debentures.
(c) Distributions on the Trust Securities shall be made from the Payment
Account by the Property Trustee or any Paying Agent and shall be payable on
each Distribution Date only to the extent that the Trust has funds then
available in the Payment Account for the payment of such Distributions.
(d) Distributions on the Trust Securities on each 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 such Distribution Date; provided, however, that in
the event that the Preferred Securities are not in book-entry-only form, the
relevant record date shall be the 15th day of the last month of each calendar
quarter, whether or not a Business Day.
Section 4.02. Redemption.
(a) Upon receipt by the Trust of a notice of redemption of Debentures,
the Trust will call for redemption a Like Amount of Trust Securities at the
Redemption Price on the Debenture Redemption Date and will call for
redemption all Outstanding Trust Securities on the stated maturity date of
the Debentures.
(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 Securities Register. All
notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
-16-
(iii) the CUSIP number;
(iv) the place or places where Trust Securities Certificates are to
be surrendered for payment of the Redemption Price;
(v) that on the Redemption Date the Redemption Price will become
payable upon each such Trust Security to be redeemed and that Distributions
thereon will cease to accumulate on and after such date; and
(vi) if less than all of the Outstanding Trust Securities are to be
redeemed, the identification and total Liquidation Amount of the particular
Trust Securities to be redeemed.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption or payment at maturity of Debentures. Redemptions of the Trust
Securities shall be made and the Redemption Price shall be payable on each
Redemption Date only to the extent that the Trust has funds then available in
the Payment Account for the payment of such Redemption Price.
(d) If the Trust, by action of the Property Trustee, gives a notice of
redemption in respect of any Preferred Securities, then, on the Redemption
Date, subject to Section 4.02(c), the Property Trustee will irrevocably
deposit with the Paying Agent funds sufficient to pay the Redemption Price
for the Preferred Securities being redeemed on such date and will give the
Paying Agent irrevocable instructions and authority to pay the Redemption
Price to the Holders of such Preferred Securities upon surrender of their
Preferred Securities Certificates. Notwithstanding the foregoing,
Distributions payable 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 record dates for the related Distribution Dates. If notice
of redemption shall have been given and funds irrevocably deposited as
required, then upon the date of such deposit, all rights of Securityholders
holding Trust Securities so called for redemption will cease, except the
right of such Securityholders to receive the Redemption Price, but without
interest, and such Trust Securities will cease to be Outstanding. In the
event that any date on which any Redemption Price is payable is not a
Business Day, then payment of the Redemption Price payable on such date will
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), except that, if such
Business Day is in the next succeeding calendar year, such payment will be
made on the immediately preceding Business Day, in each case, with the same
force and effect as if made on such date. In the event that payment of the
Redemption Price 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 accumulate, at the then applicable rate, from the Redemption
Date originally established by the Trust for such Trust Securities to the
date such Redemption Price is actually paid, in which case the actual payment
date will be the date fixed for redemption for purposes of calculating the
Redemption Price.
-17-
(e) 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 3% to the Common Securities and
97% to the Preferred Securities. The particular Preferred Securities to be
redeemed shall be selected by the Property Trustee from the Outstanding
Preferred Securities not previously called for redemption, by such method as
the Property Trustee shall deem fair and appropriate. The Property Trustee
shall promptly notify the Securities Registrar in writing of the Preferred
Securities selected for redemption. If fewer than all of the Trust
Securities represented by a Trust Securities Certificate are redeemed, the
Administrative Trustee shall execute for the Holder a new Trust Securities
Certificate representing the unredeemed Trust Securities. For all purposes
of this Declaration, unless the context otherwise requires, all provisions
relating to the redemption of Preferred Securities shall relate, in the case
of any Preferred Securities redeemed or to be redeemed only in part, to the
portion of the Liquidation Amount of Preferred Securities which has been or
is to be redeemed.
Section 4.03. Subordination of Common Securities.
(a) Payment of Distributions on, and the Redemption Price 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, a Debenture Event of Default shall have
occurred and be continuing, no payment of any Distribution on, or Redemption
Price of, any Common Security, and no other payment on account of the
liquidation of Common Securities, shall be made unless payment in full in
cash of all accumulated and unpaid Distributions on all Outstanding Preferred
Securities for all distribution periods terminating on or prior thereto, or
in the case of payment of the Redemption Price, the full amount of such
Redemption Price on all Outstanding Preferred Securities then being redeemed,
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 on, or the Redemption Price of, Preferred Securities then
due and payable.
(b) In the case of the occurrence of any Debenture Event of Default, the
Holder of Common Securities will be deemed to have waived any right to act
with respect to any related Event of Default under this Declaration and such
Debenture Event of Default until the effect of such related Event of Default
and such Debenture Event of Default has been cured, waived or otherwise
eliminated. Until any such Event of Default under this Declaration and such
Debenture Event of Default has been so cured, waived or otherwise eliminated,
the Property Trustee shall act solely on behalf of the Holders of the
Preferred Securities and not the Holder of the Common Securities, and only
the Holders of the Preferred Securities will have the right to direct the
Property Trustee to act on their behalf.
Section 4.04. Payment Procedures. Payments of Distributions pursuant to
Section 4.01 in respect of the Preferred Securities shall be made by check
mailed to the address of the Holder thereof as such address shall appear on the
Securities Register or, if the Preferred Securities are held by a Clearing
Agency, such Distributions shall be made to the Clearing Agency by wire transfer
in immediately available funds. Payments of Distributions pursuant to Section
4.01 in respect of the Common Securities shall be made in such manner as shall
be mutually agreed
-18-
between the Property Trustee and the Holder of the Common Securities.
Payment of the Redemption Price or Liquidation Distribution of the Trust
Securities shall be made in immediately available funds upon surrender of the
Trust Securities Certificate representing such Trust Securities at the
Corporate Trust Office of the Property Trustee.
Section 4.05. Tax Returns and Reports. The Administrative Trustee
shall prepare (or cause to be prepared), at the Depositor's expense, and file
all 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 Trustee shall (a) prepare and file (or cause to be prepared or
filed) the appropriate Internal Revenue Service 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 OID, or any successor form or the
information required to be provided on such form. The Administrative Trustee
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 Securities shall be reduced by the amount of any
corresponding payment such Holder has directly received pursuant to Section
508 of the Indenture or pursuant to the Guarantee. Notwithstanding the
provisions hereunder to the contrary, Securityholders acknowledge that any
Holder of Preferred Securities that receives payment under Section 508 of the
Indenture may receive amounts greater than the amount such Holder may be
entitled to receive pursuant to the other provisions of this Declaration.
ARTICLE V
Trust Securities Certificates
Section 5.01. Initial Ownership. Upon the creation of the Trust and
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 representing one or more Trust Securities.
Trust Securities Certificates representing fractional interests shall not be
issued. The Trust Securities Certificates shall be executed on behalf of the
Trust by manual signature of the Administrative Trustee or by a facsimile
signature of the Administrative Trustee countersigned by the Securities
Registrar. 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, shall be validly issued
and entitled to the benefits of this Declaration, 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
-19-
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.
Section 5.03. Delivery of Trust Securities Certificates. On the
Closing Date, the Administrative Trustee shall cause Trust Securities
Certificates, in an aggregate Liquidation Amount as provided in Section 2.04,
to be executed on behalf of the Trust as provided in Section 5.02 and
delivered to or upon a written order of the Depositor signed by any of its
Chairman of the Board, its President, any Vice President or the Treasurer,
without further corporate action by the Depositor, in authorized
denominations. The written order of the Depositor shall be accompanied by an
Officers' Certificate and an Opinion of Counsel.
Section 5.04. Registration of Transfer and Exchange of Preferred
Securities Certificates. A registrar appointed by the Depositor (the
"Securities Registrar") shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 5.08, a register (the "Securities
Register") in which, subject to such reasonable regulations as it may
prescribe, the Securities Registrar shall provide for the registration of
Trust Securities Certificates (subject to Section 5.10 in the case of the
Common Securities Certificates) and registration of transfers and exchanges
of Preferred Securities Certificates as herein provided. The Property
Trustee shall be the initial Securities Registrar; any successor Securities
Registrar shall be appointed by the Depositor.
Upon surrender for registration of transfer of any Preferred Securities
Certificate at the office or agency maintained pursuant to Section 5.08, the
Administrative Trustee shall execute and deliver, in the name of the
designated transferee or transferees, one or more new Preferred Securities
Certificates representing the same number of Preferred Securities dated the
date of execution by the Administrative Trustee. At the option of a Holder,
Preferred Securities Certificates may be exchanged for other Preferred
Securities Certificates upon surrender of the Preferred Securities
Certificates to be exchanged at the office or agency maintained pursuant to
Section 5.08. The Securities Registrar shall not be required to register the
transfer of any Preferred Securities that have been called for redemption or
after the Liquidation Date.
Preferred Securities presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer
in form satisfactory to the Administrative Trustee and the Securities
Registrar duly executed by the Holder or such Holder's attorney duly
authorized in writing. Each Preferred Securities Certificate surrendered for
registration of transfer or exchange shall be cancelled and subsequently
disposed of by the Securities Registrar in accordance with its customary
practice.
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities, but the Securities 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
Securities.
Section 5.05. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates. If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Securities Registrar, or if the
-20-
Securities 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 Securities Registrar and the Administrative Trustee
such security or indemnity as may be required by them to hold the Securities
Registrar and the Trust harmless, then in the absence of notice that such
Trust Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustee, on behalf of the Trust shall execute
and 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 tenor. In connection with the issuance
of any new Trust Securities Certificate under this Section, the
Administrative Trustee or the Securities 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
undivided beneficial interest in the assets of 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 Security Certificate for registration of transfer,
the Administrative Trustee, the Paying Agent or the Securities Registrar
shall treat the Person in whose name any Trust Securities Certificate shall
be registered in the Securities Register as the owner and Holder of such
Trust Securities Certificate for the purpose of receiving Distributions and
for all other purposes whatsoever, and neither the Trustees, the Paying Agent
nor the Securities Registrar shall be bound by any notice to the contrary.
Section 5.07. Access to List of Securityholders' Names and Addresses.
In the event that the Property Trustee is no longer the Securities Registrar,
the Administrative Trustee or the Depositor shall furnish or cause to be
furnished a list, in such form as the Property Trustee may reasonably
require, of the names and addresses of the Securityholders as of the most
recent record date (a) to the Property Trustee, quarterly not later than 10
days prior to a Distribution Date and (b) to the Property Trustee, promptly
after receipt by the Administrative Trustee or the Depositor of a request
therefor from the Property Trustee in order to enable the Paying Agent to pay
Distributions in accordance with Section 4.01 hereof, in each case to the
extent such information is in the possession or control of the Administrative
Trustee or the Depositor and is not identical to a previously supplied list
or has not otherwise been received by the Property Trustee. The rights of
Securityholders to communicate with other Securityholders with respect to
their rights under this Declaration or under the Trust Securities, and the
corresponding rights of the Property Trustee shall be as provided in the
Trust Indenture Act. Each Holder, by receiving and holding a Trust
Securities Certificate, shall be deemed to have agreed not to hold the
Depositor, the Property Trustee, the Administrative Trustee or the Delaware
Trustee 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 Securities
Registrar shall maintain in New York, New York an office or offices or agency
or agencies where Preferred Securities may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Trustees in
respect of the Trust Securities Certificates may be served. The Property
-21-
Trustee shall give prompt written notice to the Depositor and to the
Securityholders of any change in the location of the Securities Register or
any such office or agency, which shall initially be at the Corporate Trust
Office of the Property Trustee.
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 Property Trustee and the
Administrative Trustee. Any Paying Agent shall have the revocable power to
withdraw funds from the Payment Account for the purpose of making
Distributions. The Administrative Trustee may revoke such power and remove
the Paying Agent, provided that such revocation and removal with respect to
the sole Paying Agent shall not become effective until the appointment of a
successor. The Paying Agent shall initially be the Property Trustee, and any
co-paying agent chosen by the Property Trustee and acceptable to the
Administrative Trustee and the Depositor. Any Person acting as Paying Agent
shall be permitted to resign as Paying Agent upon 30 days' written notice to
the Administrative Trustee and the Depositor, and, if applicable, the
Property Trustee, provided that such resignation with respect to the sole
Paying Agent shall not become effective until the appointment of a successor.
In the event that the Property Trustee shall no longer be the Paying Agent
or a successor Paying Agent shall resign or its authority to act be revoked,
the Administrative Trustee shall appoint a successor that is acceptable to
the Property Trustee (in the case of any other Paying Agent) and the
Depositor to act as Paying Agent (which shall be a bank or trust company and
have a combined capital and surplus of at least $50,000,000). The
Administrative Trustee shall cause such successor Paying Agent or any
additional Paying Agent appointed by the Administrative Trustee 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 of such sums
remaining unclaimed to the Property Trustee and upon removal of a Paying
Agent such Paying Agent shall also return such sums in its possession to the
Property Trustee. The provisions of Sections 7.01, 7.03 and 7.06 shall apply
to the Property Trustee also in its role as Paying Agent, for so long as the
Property Trustee shall act as Paying Agent and, to the extent applicable, to
any other Paying Agent appointed hereunder. Any reference in this
Declaration to the Paying Agent shall include any co-paying agent unless the
context requires otherwise.
Section 5.10. Transfer of Securities. Subject to this Article V, the
Depositor and any Affiliate may only transfer Common Securities to the
Depositor or an Affiliate of the Depositor; PROVIDED THAT, any such transfer
is subject to the condition precedent that the transferor obtain an opinion
of counsel experienced in such matters that such transfer would not cause
more than an insubstantial risk that:
(i) the Trust would not be classified for United States federal
income tax purposes as a grantor trust; and
(ii) the Trust would be an Investment Company or the transferee would
become an Investment Company.
-22-
Section 5.11. Book-Entry Preferred Securities Certificates; Common
Securities Certificate.
(a) The Preferred Securities, upon original issuance on the Closing
Date, will not be engraved but will be issued in the form of one or more
printed or typewritten Book-Entry Preferred Securities Certificates, to be
delivered to The Depository Trust Company, the initial Clearing Agency, by,
or on behalf of, the Trust. Such Book-Entry Preferred Securities Certificate
or Certificates shall initially be registered on the Securities Register in
the name of Cede & Co., the nominee of the initial Clearing Agency.
(b) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive
Common Securities Certificate.
Section 5.12. Definitive Preferred Securities Certificates. If (a) the
Depositor advises the Trustees in writing that the Clearing Agency is no
longer willing or able to properly discharge its responsibilities with
respect to the Preferred Securities Certificates or the Clearing Agency is no
longer registered or in good standing under the Securities Exchange Act of
1934, as amended, or other applicable statute or regulation, and the
Depositor is unable to locate a qualified successor within 90 days, (b) the
Depositor at its option advises the Trustees in writing that it elects to
terminate the book-entry system through the Clearing Agency or (c) an Event
of Default occurs and is continuing, then the Administrative Trustee shall
issue Definitive Preferred Securities Certificates. Upon surrender to the
Administrative Trustee of the Book-Entry Preferred Securities Certificates by
the Clearing Agency, accompanied by registration instructions, the
Administrative Trustee shall execute and deliver the Definitive Preferred
Securities Certificates in accordance with the instructions of the Clearing
Agency. Neither the Securities Registrar nor the 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. The Definitive
Preferred Securities Certificates shall be printed, lithographed or engraved
or may be produced in any other manner as is reasonably acceptable to the
Administrative Trustee, as evidenced by the execution thereof by the
Administrative Trustee.
Section 5.13. Rights of Securityholders. The Securityholders shall not
have any right or title to the Trust Property other than the 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 Declaration. The 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 by the Trust. The Holders of the Trust Securities, in
their capacities as such, shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State of Delaware.
-23-
ARTICLE VI
Acts of Securityholders; Meetings; Voting
Section 6.01. Limitations on Voting Rights.
(a) Except as provided herein and in the Indenture and as otherwise
required by law, no Holder of 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.
(b) 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 may be waived
under Section 513 of the Indenture, (iii) exercise any right to rescind or
annul an acceleration of the principal of all the Debentures or (iv) consent
to any amendment or modification of the Indenture, where such consent shall
be required, without, in each case, obtaining the prior consent of the
Holders of at least a majority in aggregate Liquidation Amount of all
Outstanding Preferred Securities; provided, however, that where such consent
under the Indenture would require the consent of each holder of Debentures
affected thereby, no such consent shall be given by the Property Trustee
without the prior written consent of each Holder of Outstanding Preferred
Securities. The Trustees shall not revoke any action previously authorized
or approved by a vote of the Holders of Preferred Securities, except by a
subsequent vote of the Holders of Preferred Securities. The Property Trustee
shall notify all Holders of the Preferred Securities of any notice received
from the Debenture Trustee as a result of the Trust being the holder of the
Debentures. In addition to obtaining the consent of the Holders of the
Preferred Securities, prior to taking any of the foregoing actions, the
Trustees shall, at the expense of the Depositor, obtain an Opinion of Counsel
experienced in such matters to the effect that the Trust will not be
classified as an association taxable as a corporation or partnership for
United States Federal income tax purposes on account of such action and will
continue to be classified as a grantor trust for United States Federal income
tax purposes.
(c) Subject to Section 10.02(c) hereof, if any proposed amendment to the
Declaration provides for, or the Trustees otherwise propose to effect, (i)
any action that would adversely affect in any material respect the powers,
preferences or special rights of the Preferred Securities, whether by way of
amendment to this Declaration or otherwise, or (ii) dissolution of or
liquidation of the Trust, other than pursuant to the terms of this
Declaration, then the Holders of Outstanding Preferred Securities 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 a
majority in aggregate Liquidation Amount of the Outstanding Preferred
Securities.
Section 6.02. Notice of Meetings. Notice of all meetings of the Preferred
Securityholders, stating the time, place and purpose of the meeting, shall be
given by the Property
-24-
Trustee pursuant to Section 10.10 to each Preferred Securityholder of record,
at his/her 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 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 Preferred Securityholders. No annual meeting
of Securityholders is required to be held. The Administrative Trustee,
however, shall call a meeting of Securityholders to vote on any matter upon
the written request of the Holders of at least 25% of the aggregate
Liquidation Amount of the Outstanding Preferred Securities and the
Administrative Trustee or the Property Trustee may, at any time in their
discretion, call a meeting of Preferred Securityholders to vote on any
matters as to which the Preferred Securityholders are entitled to vote.
Holders of at least 50% of the aggregate Liquidation Amount of the
Outstanding Preferred Securities, present in person or by proxy, shall
constitute a quorum at any meeting of Preferred Securityholders.
If a quorum is present at a meeting, an affirmative vote of the Holders
of at least a majority of the aggregate Liquidation Amount of the Outstanding
Preferred Securities present, either in person or by proxy, at such meeting
shall constitute the action of the Preferred Securityholders, unless this
Declaration requires a greater number of affirmative votes.
Section 6.04. Voting Rights. A Securityholder shall be entitled to one
vote for each Trust Security in respect of any matter as to which such
Securityholder is 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 Trustee, or with such other officer or agent of the
Trust as the Administrative Trustee may direct, for verification prior to the
time at which such vote shall be taken. Pursuant to a resolution of the
Property Trustee, proxies may be solicited in the name of the Property
Trustee or one or more officers of the Property Trustee. 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, and the burden of
proving invalidity shall rest on the challenger. No proxy shall be valid
more than three years after its date of execution.
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 if Holders of the proportion of the Outstanding Securities required
to approve such action shall consent to the action in writing.
-25-
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 by written consent, or for the purpose of any other
action, the Administrative Trustee may from time to time fix a date, not more
than 90 days prior to the date of any meeting of Securityholders, as a record
date for the determination of the identity of the Securityholders 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 Declaration 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 Trustee. 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
Declaration and (subject to Section 7.02) conclusive, 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 acknowledgments of deeds, certifying that the individual signing such
instrument or writing acknowledged to him/her the execution thereof. Where
such execution is by a signer acting in a capacity other than his/her
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his/her 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 receiving the
same deems sufficient.
The ownership of 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.
If any dispute shall arise between the Securityholders and the
Administrative Trustee or among such Securityholders or Trustees with respect to
the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such
-26-
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. Upon reasonable notice to the
Administrative Trustee and the Property Trustee, the 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
The Trustees
Section 7.01. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustees shall be as provided
by this Declaration and, in the case of the Property Trustee, also by the
Trust Indenture Act. The Property Trustee, other than during the occurrence
and continuance of an Event of Default, undertakes to perform only such
duties as are specifically set forth in this Declaration and, upon an Event
of Default, must exercise the same degree of care and skill as a prudent
person would exercise or use in the conduct of his/her own affairs. The
Trustees shall have all the privileges, rights and immunities provided by the
Delaware Business Trust Act. Notwithstanding the foregoing, no provision of
this Declaration shall require the Trustees to expend or risk their own funds
or otherwise incur any financial liability in the performance of any of their
duties hereunder, or in the exercise of any of their rights or powers, if
they 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. Whether or not therein expressly so provided, every provision
of this Declaration relating to the conduct or affecting the liability of or
affording protection to the Trustees shall be subject to the provisions of
this Section. Nothing in this Declaration shall be construed to release the
Property Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct. To the extent that,
at law or in equity, the Administrative Trustee has duties (including
fiduciary duties) and liabilities relating thereto to the Trust or to the
Securityholders, the Administrative Trustee shall not be liable to the Trust
or to any Securityholder for the Administrative Trustee's good faith reliance
on the provisions of this Declaration. The provisions of this Declaration,
to the extent that they restrict the duties and liabilities of the
Administrative Trustee otherwise existing at law or in equity, are agreed by
the Depositor and the Securityholders to replace such other duties and
liabilities of the Administrative Trustee.
(b) All payments made by the Property Trustee or any other Paying Agent
in respect of the Trust Securities shall be made only from the income and
proceeds from the Trust Property. Each Securityholder, by its acceptance of
a Trust Security, agrees that (i) 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 (ii) 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 7.01(b) does
not limit the liability of the Trustees expressly set forth elsewhere in this
Declaration or, in the case of the Property Trustee, in the Trust Indenture
Act.
-27-
Section 7.02. Notice of Defaults; Direct Action by Securityholders.
Within 90 days after the occurrence of any Event of Default actually known to
the Property Trustee, the Property Trustee shall transmit, in the manner and
to the extent provided in Section 10.10, notice of such Event of Default to
the Securityholders, the Administrative Trustee and the Depositor, unless
such Event of Default shall have been cured or waived. If the Property
Trustee has failed to enforce its rights under this Declaration or the
Indenture, to the fullest extent permitted by law and subject to the terms of
this Declaration and the Indenture, any Securityholder may institute a legal
proceeding directly against any Person to enforce the Property Trustee's
rights under this Declaration or the Indenture with respect to Debentures
having a principal amount equal to the aggregate Liquidation Amount of the
Preferred Securities of such Securityholder without first instituting a legal
proceeding against the Property Trustee or any other Person. To the extent
that any action under the Indenture is entitled to be taken by the holders of
at least a specified percentage of the principal amount of the outstanding
Debentures, Holders of at least the same percentage of the Liquidation Amount
of the Outstanding Preferred Securities may also take such action in the name
of the Trust if such action has not been taken by the Property Trustee.
Notwithstanding the foregoing, if a Debenture Event of Default relating to
the Depositor's failure to pay the principal of or interest on the Debentures
has occurred and is continuing thereby resulting in an Event of Default
hereunder, then each Holder of Preferred Securities may institute a legal
proceeding directly against the Depositor for enforcement of payment to such
Holder, as provided in Section 508 of the Indenture.
Section 7.03. Certain Rights of Property Trustee. Subject to the
provisions of Section 7.01:
(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, consent, order, appraisal, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) if, other than during the occurrence and continuance of an
Event of Default, (i) in performing its duties under this Declaration,
the Property Trustee is required to decide between alternative courses
of action or (ii) in construing any of the provisions in this
Declaration, 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
Declaration, then, except as to any matter as to which the Preferred
Securityholders are entitled to vote under the terms of this
Declaration, 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
-28-
may, but shall be under no duty to, take or refrain from taking such
action not inconsistent with this Declaration 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 negligent
action, its own negligent failure to act or its own willful misconduct;
(c) the Property Trustee may consult with counsel or other experts of
its selection and the advice or opinion of such counsel or other experts
with respect to legal matters or advice within the scope of such experts'
area of expertise shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;
(d) the Property Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Declaration at the request or
direction of any of the Securityholders pursuant to this Declaration,
unless such Securityholders shall have offered to the Property Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction;
(e) 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
(f) 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.
Section 7.04. 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 shall not be accountable
for the use or application by the Depositor of the proceeds of the Debentures.
Section 7.05. May Hold Securities. Any Trustee or any other agent of
any Trustee or the Trust, in its individual or any other capacity, may become
the owner or pledgee of Trust Securities and, subject to Sections 7.08 and
7.13 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 other agent.
Section 7.06. Compensation; Indemnity; Fees.
(a) The Depositor agrees to pay to the Trustees from time to time such
compensation as shall have been agreed in writing with the Depositor for
all services
-29-
rendered by them 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) The Depositor agrees, 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 Declaration (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 own negligent action, its own negligent failure to act or its own
wilful misconduct (or, in the case of the Administrative Trustee, any such
expense, disbursement or advance as may be attributable to his/her gross
negligence).
(c) The Depositor agrees to indemnify each of the Property and
Delaware Trustees or any predecessor of such Trustee for, and to hold
such Trustees harmless against, any and all loss, damage, claims,
liability, penalty or expense including taxes (other than taxes based on
the income of such Trustee) incurred without its own negligent action,
its own negligent failure to act or its wilful misconduct, arising out
of or in connection with the acceptance or administration of this
Declaration, including the 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.
(d)(i) The Depositor shall indemnify, to the full extent permitted by
law, any Company Indemnified Person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the Trust) by reason of the fact that
he is or was a Company Indemnified Person against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Trust, and, with
respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of
NOLO CONTENDERE or its equivalent, shall not, of itself, create a
presumption that the Company Indemnified Person did not act in good faith
and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Trust, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful;
(ii) The Depositor shall indemnify, to the full extent permitted by
law, any Company Indemnified Person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action or suit
by or in the right of the Trust to procure a judgment in its favor by
reason of the fact that he is or was a Company Indemnified Person against
expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if
he acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the Trust and except that no such
indemnification shall be made in respect
-30-
of any claim, issue or matter as to which such Company Indemnified
Person shall have been adjudged to be liable to the Trust unless and
only to the extent that the Court of Chancery of Delaware or the court
in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of
all the circumstances of the case, such Person is fairly and reasonably
entitled to indemnity for such expenses which such Court of Chancery or
such other court shall deem proper;
(iii) To the extent that a Company Indemnified Person shall be
successful on the merits or otherwise (including dismissal of an action
without prejudice or the settlement of an action without admission of
liability) in defense of any action, suit or proceeding referred to in
paragraphs (i) and (ii) of this Section 7.06(d), or in defense of any
claim, issue or matter therein, he shall be indemnified, to the full extent
permitted by law, against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(iv) Expenses (including attorneys' fees) incurred by a Company
Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in paragraphs (i) and
(ii) of this Section 7.06(d) shall be paid by the Depositor in advance of
the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such Company Indemnified Person to repay
such amount if it shall ultimately be determined that he is not entitled to
be indemnified by the Depositor as authorized in this Section 7.06(d).
Notwithstanding the foregoing, no advance shall be made by the Depositor if
a determination is reasonably and promptly made (i) by independent legal
counsel in a written opinion or (ii) the Common Security Holder of the
Trust, that, based upon the facts known to the counsel or the Common
Security Holder at the time such determination is made, such Company
Indemnified Person acted in bad faith or in a manner that such person did
not believe to be in or not opposed to the best interests of the Trust, or,
with respect to any criminal proceeding, that such Company Indemnified
Person believed or had reasonable cause to believe his conduct was
unlawful. In no event shall any advance be made in instances where the
independent legal counsel or Common Security Holder reasonably determine
that such Person deliberately breached his duty to the Trust or its Common
or Preferred Security Holders.
(v) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other paragraphs of this Section 7.06(d) shall not
be deemed exclusive of any other rights to which those seeking
indemnification and advancement of expenses may be entitled under any
agreement, vote of stockholders or disinterested directors of the Depositor
or Preferred Security Holders of the Trust or otherwise, both as to action
in his official capacity and as to action in another capacity while holding
such office. All rights to indemnification under this Section 7.06(d)
shall be deemed to be provided by a contract between the Depositor and each
Company Indemnified Person who serves in such capacity at any time while
this Section 7.06(d) is in effect. Any repeal or modification of this
Section 7.06(d) shall not affect any rights or obligations then existing.
-31-
(vi) The Depositor or the Trust may purchase and maintain insurance on
behalf of any person who is or was a Company Indemnified Person against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Debenture Issuer
would have the power to indemnify him against such liability under the
provisions of this Section 7.06(d).
(vii) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 7.06(d) shall, unless otherwise provided
when authorized or ratified, continue as to a Person who has ceased to be a
Company Indemnified Person and shall inure to the benefit of the heirs,
executors and administrators of such a Person.
No Trustee may claim any Lien or charge on any Trust Property as a result
of any amount due pursuant to this Section 7.06.
The provisions of this Section 7.06 shall survive the termination of this
Declaration.
Section 7.07. Corporate Property Trustee Required; Eligibility of
Trustees.
(a) There shall at all times be a Property Trustee hereunder. The
Property Trustee shall be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and 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.
(b) There shall at all times be one or more Administrative Trustees
hereunder. 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 that entity.
(c) There shall at all times be a Delaware Trustee. 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 and that otherwise meets
the requirements of applicable Delaware law that shall act through one or
more persons authorized to bind such entity.
Section 7.08. 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 Declaration.
Section 7.09. 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
-32-
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
Administrative Trustee (and if more than one Administrative Trustee, by
agreed action of the majority of such Trustees) shall have power (i) to
appoint, and upon the written request of the Administrative Trustee the
Depositor shall for such purpose join with the Administrative 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 the extent required by law 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 (ii) 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. Any co-trustee or separate trustee
appointed pursuant to this Section shall either be (i) a natural person who
is at least 21 years of age and a resident of the United States or (ii) a
legal entity with its principal place of business in the United States that
shall act through one or more persons authorized to bind such entity.
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:
(a) 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 specified hereunder, shall be
exercised, solely by such Trustees and not by such co-trustee or separate
trustee.
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.
(b) 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
-33-
any co-trustee or separate trustee appointed under this Section, 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 7.09.
(c) No co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Property Trustee, or any
other trustee hereunder.
(d) The Property Trustee shall not be liable by reason of any
act of a co-trustee or separate trustee.
(e) 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 7.10. Resignation and Removal; Appointment of Successor. No
resignation or removal of any Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 7.11.
Subject to the immediately preceding paragraph, any Trustee may resign at
any time with respect to the Trust Securities by giving written notice thereof
to the Securityholders.
Unless an Event of Default shall have occurred and be continuing, any
Trustee may be removed at any time by Act of the Holder of the Common
Securities. If an Event of Default shall have occurred and be continuing, the
Property Trustee or the Delaware Trustee, or both of them, may be removed at
such time only by Act of the Holders of at least a majority in Liquidation
Amount of the Outstanding Preferred Securities, delivered to such Trustee (in
its individual capacity and on behalf of the Trust). The Administrative Trustee
may only be removed by the Holder of Common Securities at any time.
If the instrument of acceptance by the successor Trustee required by
Section 7.11 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation or removal, the Trustee may petition,
at the expense of the Depositor, any court of competent jurisdiction for the
appointment of a successor Trustee.
If any Trustee shall resign, be removed or become incapable of acting as
Trustee, or if a vacancy shall occur in the office of any Trustee for any cause,
at a time when no Event of Default shall have occurred and be continuing, the
Holder of Common Securities, by Act of the Holder of Common Securities delivered
to the retiring Trustee, shall promptly appoint a successor Trustee or Trustees
and the Trust, and the retiring Trustee shall comply with the applicable
requirements of Section 7.11. If the Property Trustee or the Delaware Trustee
shall resign, be removed or
-34-
become incapable of continuing to act as the Property Trustee or the Delaware
Trustee, as the case may be, at a time when an Event of Default has occurred
and is continuing, the Holders of Preferred Securities, by Act of the
Securityholders of at least a majority in Liquidation Amount of the
Outstanding Preferred Securities delivered to the retiring Trustee, shall
promptly appoint a successor Trustee or Trustees, and such successor Trustee
shall comply with the applicable requirements of Section 7.11. If any
Administrative Trustee shall resign, be removed or become incapable of acting
as Administrative Trustee at a time when an Event of Default shall have
occurred and be continuing, the Holder of Common Securities shall appoint a
successor Administrative Trustee. If no successor Trustee shall have been so
appointed by the Holder of Common Securities or the Holders of Preferred
Securities and accepted appointment in the manner required by Section 7.11,
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 Trustee.
The Property Trustee shall give notice of each resignation and each removal
of a Trustee and each appointment of a successor Trustee to all Securityholders
in the manner provided in Section 10.10 and shall give notice to the Depositor.
Each notice shall include the name of the successor Trustee and the address of
its Corporate Trust Office if it is the Property Trustee.
Notwithstanding the foregoing or any other provision of this Declaration,
in the event any Administrative Trustee or Delaware Trustee who is a natural
person dies or becomes, in the opinion of the Depositor, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity may
be filled by (a) the unanimous act of the remaining Administrative Trustees if
there are at least two of them or (b) otherwise by the Depositor (with the
successor in each case being a Person who satisfies the eligibility requirements
for Administrative Trustee or for the Delaware Trustee, as the case may be, set
forth in Section 7.07).
Section 7.11. Acceptance of Appointment by Successor. In case of the
appointment hereunder of a successor Trustee, the retiring Trustee and each
successor Trustee shall execute and deliver to the Trust and the retiring
Trustee an amendment hereto wherein each successor Trustee shall accept such
appointment and which (a) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each successor Trustee all
the rights, powers, trusts and duties of the retiring Trustee and (b) shall add
to or change any of the provisions of this Declaration as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such amendment
shall constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee and upon
the execution and delivery of such amendment the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein and each
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee and the Trust; but, on request of the Trust or any successor Trustee,
such retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all Trust Property, all proceeds thereof and money held by such retiring
Trustee hereunder.
-35-
Upon request of any such successor Trustee, the Trust shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to in the
first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 7.12. Merger, Conversion, Consolidation or Succession to
Business. Any Person into which any of the Trustees 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 Trustee shall be a
party, or any Person succeeding to all or substantially all the corporate
trust business of such Trustee, shall be the successor of such Trustee
hereunder, provided such Person shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
Section 7.13. Preferential Collection of Claims Against Depositor or
Trust. If and when the Property Trustee or the Delaware Trustee shall be or
become a creditor (whether directly or indirectly, secured or unsecured) of
the Depositor or the Trust (or any other obligor upon the Debentures or the
Trust Securities), including under the terms of Section 7.05 hereof, the
Property Trustee or the Delaware Trustee, as the case may be, shall be
subject to and shall take all actions necessary in order to comply with the
provisions of the Trust Indenture Act regarding the collection of claims
against the Depositor or Trust (or any such other obligor).
Section 7.14. Reports by Property Trustee. The Property Trustee shall
transmit to Holders such reports concerning the Property Trustee and its
actions under this Declaration as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto. If
required by Section 313(a) of the Trust Indenture Act, the Property Trustee
shall, within 60 days after each May 31 following the date of this
Declaration deliver to Holders a brief report, dated as of such May 31, which
complies with the provisions of such Section 313(a).
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
any Preferred Securities are then listed, with the Commission and with the
Trust. The Trust will promptly notify the Property Trustee when any
Preferred Securities are listed on any stock exchange.
Section 7.15. Reports to the Property Trustee. The Depositor and the
Administrative Trustee on behalf of the Trust shall provide to the Property
Trustee such documents, reports and information as required by Section 314 of
the Trust Indenture Act (if any) and the compliance certificate required by
Section 314(a) of the Trust Indenture Act in the form, in the manner and at
the times required by Section 314 of the Trust Indenture Act.
Section 7.16. Evidence of Compliance with Conditions Precedent. The
Depositor and the Administrative Trustee on behalf of the Trust shall provide to
the Property Trustee evidence of
-36-
compliance with the conditions precedent, if any, provided for in this
Declaration that relate to any of the matters set forth in Section 314(c) of
the Trust Indenture Act.
Section 7.17. Statements Required in Officers' Certificate and Opinion
of Counsel.
Each Officers' Certificate and Opinion of Counsel with respect to
compliance with a covenant or condition provided for in this Declaration
shall include:
(1) a statement that each Person making such Officers' Certificate or
Opinion of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
Officers' Certificate or Opinion of Counsel are based;
(3) a statement that, in the opinion of each such Person, such Person
has made such examination or investigation as is necessary to enable such
Person to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement that, in the opinion of such Person, such covenant or
condition has been complied with; provided, however, that with respect to
matters of fact not involving any legal conclusion, an Opinion of Counsel
may rely on an Officers' Certificate or certificates of public officials.
Section 7.18. Number of Trustees.
(a) The number of Trustees shall be three, provided that the Holder of all
of the Common Securities by written instrument may increase and, if increased,
may 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 7.18(a), or if the
number of Trustees is increased pursuant to Section 7.18(a), a vacancy shall
occur. The vacancy shall be filled with a Trustee appointed in accordance
with Section 7.10.
(c) The death, resignation, retirement, removal, bankruptcy,
dissolution, termination, incompetence or incapacity to perform the duties of
a Trustee shall not operate to dissolve, terminate or annul the Trust.
Whenever a vacancy shall occur, until such vacancy is filled by the
appointment of an Administrative Trustee in accordance with Section 7.10, the
Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Declaration), shall have all the
powers granted to the Administrative Trustee and shall discharge all the
duties imposed upon the Administrative Trustees by this Declaration.
-37-
Section 7.19. Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent with
applicable law, delegate to any natural person over the age of 21 his or her
power for the purpose of executing any documents contemplated in Section
2.07(a), 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, if there is more than one Administrative
Trustee, or to the Depositor 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 7.20. Voting. Except as otherwise provided in this Declaration,
the consent or vote of the Trustees shall be approved by not less than a
majority of the Administrative Trustees.
ARTICLE VIII
Dissolution and Liquidation
Section 8.01. Dissolution Upon Expiration Date. Unless earlier dissolved,
the Trust shall automatically dissolve on ________ __, 2053 (the "Expiration
Date").
Section 8.02. Early Dissolution. The earliest to occur of any of the
following events is an "Early Dissolution Event" upon the occurrence of which
the Trust shall be dissolved:
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of the Depositor or an acceleration of the
maturity of the Debentures pursuant to Section 502 of the Indenture;
(b) upon the election of the Depositor to liquidate the Trust and
cause the distribution of a Like Amount of Debentures to the Holders of
the Trust Securities;
(c) the redemption of all of the Trust Securities; and
(d) an order for dissolution of the Trust shall have been entered by a
court of competent jurisdiction.
The election of the Depositor pursuant to Section 8.02(b) shall be made by
the Depositor giving written notice to the Trustees not less than 30 days prior
to the date of distribution of the Debentures. Such notice shall specify the
date of distribution of the Debentures and shall be accompanied by an Opinion of
Counsel that such event will not be a taxable event to the Holders of the Trust
Securities for Federal income tax purposes.
-38-
Section 8.03. Dissolution. The respective obligations and
responsibilities of the Trustees and the Trust continued hereby shall
terminate upon the latest to occur of the following: (a) the distribution by
the Property Trustee to Securityholders upon the liquidation of the Trust
pursuant to Section 8.04, or upon the redemption of all of the Trust
Securities pursuant to Section 4.02, of all amounts required to be
distributed hereunder upon the final payment of the Trust Securities; (b) the
payment of any expenses owed by the Trust; and (c) the discharge of all
administrative duties of the Administrative Trustee, including the
performance of any tax reporting obligations with respect to the Trust or the
Securityholders.
Section 8.04. Liquidation.
(a) If an Early Dissolution Event specified in clause (a), (c) or (d) of
Section 8.02 occurs or upon the Expiration Date, the Trust shall be
liquidated by the Trustees as expeditiously as the Trustees determine to be
possible by distributing, after satisfaction of liabilities to creditors of
the Trust as provided by applicable law, to each Securityholder a Like Amount
of Debentures, subject to Section 8.04(d). If an Early Dissolution Event
specified in clause (b) occurs, the Trust shall be liquidated by the Trustee
on the date of distribution of the Debentures specified by the Depositor in
its notice delivered pursuant to Section 8.02. Notice of liquidation shall
be given by the Property Trustee 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 certificates
evidencing Debentures, or, if Section 8.04(d) applies, receive a
Liquidation Distribution, as the Administrative Trustee or the Property
Trustee shall deem appropriate.
(b) In order to effect the liquidation of the Trust and distribution of
the Debentures to Securityholders, the Property Trustee, 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 Section 8.02(c) or 8.04(d) applies, on or after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) certificates representing a Like Amount of Debentures will
be issued to Holders of Trust Securities Certificates, upon surrender of such
certificates to the Administrative Trustee or its agent for exchange, (iii)
the Depositor shall use its best efforts to have the Debentures listed on the
New York Stock Exchange or such other exchange as the Preferred Securities
are then listed and shall take any
-39-
reasonable action necessary to effect the distribution of the Debentures,
(iv) 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 Securities Certificates until such
certificates are so surrendered (and until such 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 (v) all
rights of Securityholders holding Trust Securities will cease, except the
right of such Securityholders to receive Debentures upon surrender of Trust
Securities Certificates.
(d) In the event that, notwithstanding the other provisions of this
Section 8.04, 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
dissolved, by the Property Trustee in such manner as the Property Trustee
determines. In such event, on the date of the dissolution of the Trust,
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 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 dissolution, 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 the Common Securities
will be entitled to receive Liquidation Distributions upon any such
dissolution pro rata (determined as aforesaid) with Holders of Preferred
Securities, except that, if a Debenture Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities, and no Liquidation Distribution will be paid to the Holders of
the Common Securities unless and until receipt by all Holders of the
Preferred Securities of the entire Liquidation Distribution payable in
respect thereof.
ARTICLE IX
Mergers, Etc.
Section 9.01. Mergers, Consolidations, Amalgamations or Replacements of
the Trust. The Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to any Person except as described below
or under Article VIII. The Trust may, at the request of the Depositor, with the
consent of the Administrative Trustee and without the consent of the Holders of
the Preferred Securities, merge with or into, consolidate, amalgamate, or be
replaced by, a trust organized as such under the laws of any State; provided,
that (i) such successor entity either (a) expressly assumes all of the
obligations of the Trust with respect to the Preferred Securities or (b)
substitutes for the Preferred Securities other securities having substantially
the same terms as the Preferred Securities (the "Successor Securities") so long
as the Successor Securities rank the same as the Preferred Securities rank with
respect to the payment of Distributions and payments
-40-
upon liquidation and redemption, (ii) the Depositor expressly appoints a
trustee of such successor entity possessing the same powers and duties as the
Property Trustee with respect to the Debentures, (iii) the Successor
Securities are listed, or any Successor Securities will be listed upon
notification of issuance, on any national securities exchange or other
organization on which the Preferred Securities are then listed, (iv) such
merger, consolidation, amalgamation or replacement does not cause the
Preferred Securities (including any Successor Securities) to be downgraded by
any nationally recognized statistical rating organization, (v) such merger,
consolidation, amalgamation or replacement does not adversely affect the
rights, preferences and privileges of the Holders of the Preferred Securities
(including any Successor Securities) in any material respect, (vi) such
successor entity has a purpose substantially similar to that of the Trust,
(vii) prior to such merger, consolidation, amalgamation or replacement, the
Depositor has received an Opinion of Counsel to the effect that (a) such
merger, consolidation, amalgamation or replacement does not adversely affect
the rights, preferences and privileges of the Holders of the Preferred
Securities (including any Successor Securities) in any material respect, and
(b) following such merger, consolidation, amalgamation or replacement,
neither the Trust nor such successor entity will be required to register as
an Investment Company and (viii) the Depositor or any permitted successor
assignee owns all of the common securities of such successor entity and
guarantees the obligations of such successor entity under the Successor
Securities at least to the extent provided by the Guarantee and this
Declaration. Notwithstanding the foregoing, the Trust shall not, except with
the consent of all Holders of the Preferred Securities, merge with or into,
consolidate, amalgamate, or be replaced by, any other entity or permit any
other entity to consolidate, amalgamate, merge with or into, or replace it if
such consolidation, amalgamation, merger or replacement would cause the Trust
or the successor entity not to be classified as a grantor trust for United
States Federal income tax purposes.
ARTICLE X
Miscellaneous Provisions
Section 10.01. Limitation of Rights of Securityholders. The death or
incapacity, bankruptcy, dissolution and termination of any Person having an
interest, beneficial or otherwise, in Trust Securities shall not operate to
terminate this Declaration, or 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 10.02. Amendment.
(a) This Declaration may be amended from time to time by the Trustees
and the Depositor, without the consent of any Securityholders, to cure any
ambiguity, defect or inconsistency or make any other change which does not
adversely affect in any material respect the interests of any Holder of
Preferred Securities. Any amendments of this Declaration pursuant to Section
10.02(a) shall become effective when notice thereof is given to the
Securityholders.
-41-
(b) Except as provided in Section 10.02(a) and 10.02(c) hereof, any
provision of this Declaration may be amended by the Trustees and the
Depositor with the consent of Holders of at least a majority of the aggregate
Liquidation Amount of the Outstanding Preferred Securities.
(c) In addition to and notwithstanding any other provision in this
Declaration, without the consent of each affected Securityholder (such
consent being obtained in accordance with Section 6.03 or 6.06 hereof), this
Declaration may not be amended to (i) change the amount, timing or currency
of any Distribution or Liquidation Distribution on the Trust Securities or
otherwise adversely affect the method of payment of any Distribution or
Liquidation Distribution required to be made in respect of the Trust
Securities as of a specified date; (ii) change the redemption provisions of
the Trust Securities; (iii) restrict the right of a Securityholder to
institute suit for the enforcement of any such payment contemplated in (i) or
(ii) above on or after the related date; (iv) modify the first sentence of
Section 2.06(a) hereof; (v) authorize or issue any beneficial interest in the
Trust other than as contemplated by this Declaration as of the date hereof;
(vi) change the conditions precedent for the Depositor to elect to dissolve
the Trust and distribute the Debentures to Holders of Trust Securities as set
forth in Section 8.02; or (vii) affect the limited liability of any Holder of
Preferred Securities, and, notwithstanding any other provision herein,
without the unanimous consent of the Securityholders (such consent being
obtained in accordance with Section 6.03 or 6.06 hereof), paragraphs (b) and
(c) of this Section 10.02 may not be amended.
(d) Notwithstanding any other provisions of this Declaration, no
amendment to this Declaration shall be made without receipt by the Trust of
an Opinion of Counsel experienced in such matters to the effect that such
amendment will not affect the Trust's status as a grantor trust for United
States Federal income tax purposes or its exemption from regulation as an
Investment Company.
(e) Notwithstanding anything in this Declaration to the contrary,
without the consent of the Depositor, this Declaration may not be amended in
a manner which imposes any additional obligation on the Depositor.
(f) In the event that any amendment to this Declaration is made, the
Administrative Trustee shall promptly provide to the Depositor a copy of such
amendment.
(g) In executing any amendment to this Declaration, the Property Trustee
shall be entitled to receive, and (subject to Section 7.01) shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution
of such amendment is authorized or permitted by this Declaration. Except as
contemplated by Section 7.11, a Trustee may, but shall not be obligated to,
enter into any amendment to this Declaration which affects the Trustee's own
rights, duties or immunities under this Declaration or otherwise.
Section 10.03. Severability. In case any provision in this Declaration 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.
-42-
Section 10.04. Fiscal Year. The fiscal year ("Fiscal Year") of the
Trust shall be the calendar year, or such other year as is required by the
Code.
Section 10.05. Certain Accounting Matters. At all times during the
existence of the Trust, the Administrative Trustee shall keep, or cause to be
kept, full books of account, records and supporting documents, which shall
reflect in reasonable detail, each transaction of the Trust. The books of
account shall be maintained on the accrual method of accounting, in
accordance with generally accepted accounting principles, consistently
applied. The Trust shall use the accrual method of accounting for United
States federal income tax purposes. The books of account and the records of
the Trust shall be examined by and reported upon as of the end of each Fiscal
Year of the Trust by a firm of independent certified public accountants
selected by the Administrative Trustee.
Section 10.06. Governing Law. THIS DECLARATION AND THE RIGHTS AND
OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH
RESPECT TO THIS DECLARATION 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 10.07. Payments Due on Non-Business Day. If the date fixed for
any payment on any Trust Security shall be a day which is not a Business Day,
then such payment need not be made on such date but may be made on the next
succeeding day which is a Business Day (except as otherwise provided herein,
with the same force and effect as though made on the date fixed for such
payment), and no interest shall accumulate thereon for the period after such
date to the date of payment on such succeeding day.
Section 10.08. Successors and Assigns. This Declaration shall be
binding upon and shall inure to the benefit of any successor to the Trust or
successor Trustee or both, including any successor by operation of law.
Except in connection with a consolidation, merger or sale involving the
Depositor that is permitted under Article Eight of the Indenture and pursuant
to which the assignee agrees in writing to perform the Depositor's
obligations hereunder, the Depositor shall not assign its obligations
hereunder.
Section 10.09. Headings. The Article and Section headings are for
convenience only and shall not affect the construction of this Declaration.
Section 10.10. Reports, Notices and Demands. Any report, notice,
demand or other communication which by any provision of this Declaration 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,
first-class postage prepaid in the United States mail, hand delivery or
facsimile transmission, in each case, addressed, (a) in the case of a Holder
of a Preferred Security, to such Holder of a Preferred Security as such
Securityholder's name and address may appear on the Securities Register; and
(b) in the case of the Holder of a Common Security or the Depositor, to
Public Service Company of Colorado, 1225 17th Street, Denver Colorado 80202,
Attention:
-43-
General Counsel, facsimile no.: (303)294-8815. Such notice,
demand or other communication to or upon a Securityholder or the Depositor
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
Declaration is required or permitted to be given or served to or upon the
Trust, the Property Trustee or the Administrative Trustee shall be given in
writing addressed (until another address is published by the Trust) as
follows: (a) with respect to the Property Trustee to The Bank of New York,
101 Barclay Street, Floor 21 West, New York, New York, Attention: Corporate
Trust Office; (b) with respect to the Delaware Trustee to The Bank of New
York (Delaware), White Clay Center, Route 273, Newark, Delaware 19711,
Attention: Corporate Trust Department; and (c) with respect to the
Administrative Trustee, to the address above for notices to the Depositor,
marked "Attention: Administrative Trustee of PSCO Capital Trust I c/o General
Counsel." Such notice, demand or other communication to or upon the Trust,
the Delaware Trustee or the Property Trustee shall be deemed to have been
sufficiently given or made only upon actual receipt of the writing by the
Trust, the Delaware Trustee or the Property Trustee.
Section 10.11. Agreement Not to Petition. Each of the Trustees and the
Depositor agree 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 VIII, they shall not file, or join in the filing of, a petition
against the Trust under any Bankruptcy Laws or otherwise join in the
commencement of any proceeding against the Trust under any Bankruptcy Law.
In the event the Depositor or any of the Trustees takes action in violation
of this Section 10.11, the Property Trustee agrees, for the benefit of
Securityholders, that at the expense of the Depositor, it shall file an
answer with the bankruptcy court or otherwise properly contest the filing of
such petition by the Depositor or any of the Trustees, as applicable, against
the Trust or the commencement of such action and raise the defense that the
Depositor or Trustee, as applicable, has agreed in writing not to take such
action and should be stopped 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 10.11 shall survive the termination of this
Declaration.
Section 10.12. Trust Indenture Act; Conflict with Trust Indenture Act.
(a) This Declaration is subject to the provisions of the Trust Indenture
Act that are required to be part of this Declaration and shall, to the extent
applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a trustee
for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Declaration by any
of the provisions of the Trust Indenture Act, such required provision shall
control. If any provision of this Declaration modifies or excludes any
provision of the Trust Indenture Act which may be so modified or excluded,
the latter
-44-
provision shall be deemed to apply to this Declaration as so modified or
excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Declaration shall
not affect the nature of the Trust Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
Section 10.13. Acceptance of Terms of Declaration, Guarantee and
Indenture. THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, 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 DECLARATION AND
AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND
THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH
SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS DECLARATION
SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH
SECURITYHOLDER AND SUCH OTHERS.
ARTICLE XI
Representations of Property Trustee and Delaware Trustee
Section 11.01. Representations and Warranties of Property Trustee. The
Trustee that acts as initial Property Trustee represents and warrants to the
Trust and to the Depositor at the date of this Declaration, and each Successor
Property Trustee represents and warrants to the Trust and the Depositor at the
time of the Successor Property Trustee's acceptance of its appointment as
Property Trustee that:
(a) the Property Trustee is a banking corporation with trust powers,
duly organized, validly existing and in good standing under the laws of its
state of organization, with trust power and authority to execute and
deliver, and to carry out and perform its obligations under the terms of,
the Declaration;
(b) the execution, delivery and performance by the Property Trustee
of the Declaration has been duly authorized by all necessary corporate
action on the part of the Property Trustee. The Declaration has been duly
executed and delivered by the Property Trustee, and it constitutes a legal,
valid and binding obligation of the Property Trustee, enforceable against
it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting
creditors' rights generally and to generally principles of equity and the
discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law);
-45-
(c) the execution, delivery and performance of the Declaration by the
Property Trustee does not conflict with or constitute a breach of the
Articles of Organization or By-laws of the Property Trustee; and
(d) no consent, approval or authorization of, or registration with or
notice to, any State or Federal banking authority is required for the
execution, delivery or performance by the Property Trustee, of the
Declaration.
Section 11.02. Representations and Warranties of Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents and warrants
to the Trust and to the Sponsor at the date of this Declaration, and each
Successor Delaware Trustee represents and warrants to the Trust and the Sponsor
at the time of the Successor Delaware Trustee's acceptance of its appointment as
Delaware Trustee that:
(a) The Delaware Trustee is a Delaware banking corporation with trust
powers, duly organized, validly existing and in good standing under the
laws of the State of Delaware, with trust power and authority to execute
and deliver, and to carry out and perform its obligations under the terms
of, the Declaration;
(b) The Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and the Declaration. The
Declaration under Delaware law constitutes a legal, valid and binding
obligation of the Delaware Trustee, enforceable against it in accordance
with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the
court (regardless of whether the enforcement of such remedies is considered
in a proceeding in equity or at law);
(c) No consent, approval or authorization of, or registration with or
notice to, any State or Federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee, of the
Declaration; and
(d) The Delaware Trustee is a natural person who is a resident of the
State of Delaware or, if not a natural person, an entity which has its
principal place of business in the State of Delaware.
-46-
EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.
PUBLIC SERVICE COMPANY OF
COLORADO, as Depositor
By:
---------------------------------------
Name:
Title:
THE BANK OF NEW YORK
Property Trustee
By:
---------------------------------------
Name:
Title:
THE BANK OF NEW YORK (DELAWARE)
as Delaware Trustee
By:
---------------------------------------
Name:
Title:
NANCY FELKER,
as Administrative Trustee
--------------------------------------------
-47-
EXHIBIT A
CERTIFICATE OF TRUST
OF
PSCO CAPITAL TRUST I
THIS CERTIFICATE OF TRUST of PSCO Capital Trust I (the "Trust"), dated
as of February 27, 1998, 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. Section 3801, et seq.).
(i) Name. The name of the business trust being formed hereby is
PSCO Capital Trust I.
(ii) Delaware Trustee. The name and business address of the
trustee of the Trust in the State of Delaware are :
The Bank of New York (Delaware)
White Clay Center, Route 273
Newark, DE 19711
(iii) Counterparts. This Certificate of Trust may be executed in
one or more counterparts, all of which together shall constitute one and the
same instrument.
(iv) Effective Date. This Certificate of Trust shall be
effective as of its filing.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust,
have executed this Certificate of Trust as of the date first above written.
The Bank of New York, as Trustee
By:
---------------------------------------
Name:
Title:
The Bank of New York, Delaware, as Trustee
By:
---------------------------------------
Name:
Title:
--------------------------------------------
Nancy Felker, as Trustee
A-1
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS PROVIDED IN SECTION 5.10
OF THE DECLARATION REFERRED TO HEREIN
Certificate Number
B-1
Number of Common Securities
-------
Certificate Evidencing Common Securities
of
PSCO Capital Trust I
_____% Common Securities
(liquidation amount $25 per Common Security)
PSCO Capital Trust I, a statutory business trust created under the laws of
the State of Delaware (the "Trust"), hereby certifies that Public Service
Company of Colorado (the "Holder") is the registered owner of
________________________ (_______) common securities of the Trust representing
undivided beneficial interests in the assets of the Trust and designated as the
_____% Common Securities (liquidation amount $25 per Common Security) (the
"Common Securities"). In accordance with Section 5.10 of the Declaration (as
defined below) the Common Securities are transferable upon the books and records
of the Trust only to the Holder or any Affiliate of the Holder, subject to the
procedures and conditions set forth in Section 5.10 of the Declaration. The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Common Securities are set forth in, and this certificate and
the Common Securities represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated Declaration of
the Trust dated as of ___________ ___, 1998 as the same may be amended from time
to time (the "Declaration"). The Trust will furnish a copy of the Declaration
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 Declaration
and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, the Administrative Trustee of the Trust has executed
this certificate this ____ day of ________, 1998.
PSCO CAPITAL TRUST I
By:
-----------------------------------------------
Name: Nancy Felker, as Administrative Trustee
B-1
EXHIBIT C
Certificate Number
--------
Number of Preferred Securities
CUSIP NO. __________
Certificate Evidencing Preferred Securities
of
PSCO Capital Trust I
_____% Trust Originated Preferred Securities
(liquidation amount $25 per Preferred Security)
PSCO Capital Trust I, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that Cede & Co. (the
"Holder") is the registered owner of _________, _________________________
(_________) preferred securities of the Trust representing an undivided
beneficial interest in the assets of the Trust and designated the PSCO
Capital Trust I _____% Trust Originated Preferred Securities (liquidation
amount $25 per Preferred Security) (the "Preferred Securities"). The
Preferred Securities are transferable on the books and records of the Trust,
in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer as provided in
Section 5.04 of the Declaration (as defined below). The designations,
rights, privileges, restrictions, preferences and other terms and provisions
of the Preferred Securities are set forth in, and this certificate and the
Preferred Securities represented hereby are issued and shall in all respects
be subject to the terms and provisions of, the Amended and Restated
Declaration of the Trust dated as of ____________, 1998 as the same may be
amended from time to time (the "Declaration"). The Holder is entitled to the
benefits of the Preferred Securities Guarantee Agreement entered into by
Public Service Company of Colorado, a Colorado corporation, and The Bank of
New York as guarantee trustee, dated as of __________ ___, 1998 (the
"Preferred Securities Guarantee") to the extent provided therein, together
with the obligations of Public Service Company of Colorado under the
Declaration, its Deferrable Interest Subordinated Debentures, Series ___ and
the Indenture related to such Deferrable Interest Subordinated Debentures.
The Trust will furnish a copy of the aforementioned agreements and
instruments 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 Declaration
and is entitled to the benefits thereunder.
C-1
IN WITNESS WHEREOF, the Administrative Trustee of the Trust has executed
this certificate this ____ day of ______________ 1998.
PSCO CAPITAL TRUST I
By:
-----------------------------------------------
Name: Nancy Felker, as Administrative Trustee
THE BANK OF NEW YORK, as Securities Registrar
By:
-----------------------------------------------
Name:
Title:
[To be included on face of Book-Entry Preferred Securities Certificate]
THIS PREFERRED SECURITY IS A BOOK-ENTRY PREFERRED SECURITIES CERTIFICATE
WITHIN THE MEANING OF THE DECLARATION PREVIOUSLY REFERRED TO AND IS REGISTERED
IN THE NAME OF THE DEPOSITORY TRUST COMPANY (THE "DEPOSITORY") OR A NOMINEE OF
THE DEPOSITORY. THIS PREFERRED SECURITY IS EXCHANGEABLE FOR PREFERRED
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE DECLARATION AND NO
TRANSFER OF THIS PREFERRED SECURITY (OTHER THAN A TRANSFER OF THIS PREFERRED
SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A
NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, (55 WATER STREET, NEW
YORK) TO PSCO CAPITAL TRUST I OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY PREFERRED SECURITY ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY A PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
C-2
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Preferred Security will be fixed at a rate
per annum of _____% (the "Coupon Rate") of the stated liquidation amount of
$____ per Preferred Security, such rate being the rate of interest payable on
the Debentures to be held by the Property Trustee. Distributions in arrears for
more than one quarter will bear interest thereon compounded quarterly at the
Coupon Rate (to the extent permitted by applicable law). The term
"Distributions" as used herein includes such cash distributions and any such
interest payable unless otherwise stated. A Distribution is payable only to the
extent that payments are made in respect of the Debentures held by the Property
Trustee and to the extent the Property Trustee has funds available therefor.
The amount of Distributions payable for any period will be computed for any full
quarterly Distribution period on the basis of a 360-day year of twelve 30-day
months, and for any period shorter than a full quarterly Distribution period for
which Distributions are computed, Distributions will be computed on the basis of
the actual number of days elapsed per 90-day quarter.
Except as otherwise described below, Distributions on the Preferred
Securities will be cumulative, will accrue from the date of original issuance
and will be payable quarterly in arrears, on March 31, June 30, September 30 and
December 31 of each year, commencing on June 30, 1998, which payment dates shall
correspond to the interest payment dates on the Debentures. The Issuer of the
Debentures has the right under the Indenture to defer payments of interest by
extending the interest payment period from time to time on the Debentures for a
period not exceeding 20 consecutive quarters or the final maturity date of the
Debentures (each an "Extension Period") and, as a consequence of such deferral,
Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the Coupon Rate compounded quarterly during any
such Extension Period. Prior to the termination of any such Extension Period,
the issuer of the Debentures may further extend such Extension Period; PROVIDED
THAT such Extension Period together with all such previous and further
extensions thereof may not exceed 20 consecutive quarters or the final maturity
date of the Debentures. Payments of accrued Distributions will be payable to
Holders as they appear on the books and records of the Trust on the first record
date after the end of the Extension Period. Upon the termination of any
Extension Period and the payment of all amounts then due, the issuer of the
Debentures may commence a new Extension Period, subject to the above
requirements.
The Preferred Securities shall be redeemable as provided in the
Declaration.
C-3
--------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
agent to transfer this Preferred Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date:
-------------------------------------------
Signature:
--------------------------------------
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
Signature Guaranty:
-----------------------------
C-4