Exhibit 4(w)
TRUST AGREEMENT
OF
EMPIRE DISTRICT ELECTRIC TRUST II
This Trust Agreement, dated as of February 6, 2001, between The Empire
District Electric Company, a Kansas corporation, as "Depositor," and Xxxxx Fargo
Bank Minnesota, National Association, a national banking association organized
under the laws of the United States, The Bank of New York (Delaware), Xxxxx X.
XxXxxxxx and Xxxxx X. Xxxxxx, each solely as trustee and not in its or his
individual capacity, as "Trustees." The Depositor and the Trustees hereby agree
as follows:
Section 1. The Trust. The trust created hereby shall be known as Empire
District Electric Trust II (the "Trust"), in which name the Trustees, or the
Depositor to the extent provided herein, may conduct the business of the Trust,
make and execute contracts, and xxx and be sued.
Section 2. The Trust Estate. The Depositor hereby assigns, transfers,
conveys and sets over to the Trustees the sum of $10. The Trustees hereby
acknowledge receipt of such amount from the Depositor, which amount shall
constitute the initial trust estate. The Trustees hereby declare that they will
hold the trust estate for the Depositor. It is the intention of the parties
hereto that the Trust created hereby constitute a business trust under Chapter
38 of Title 12 of the Delaware Code, 12 Del. C. (S)(S) 3801 et seq. (the
"Business Trust Act"), and that this document constitutes the governing
instrument of the Trust. The Trustees are hereby authorized and directed to
execute and file a certificate of trust with the Delaware Secretary of State in
accordance with the provisions of the Business Trust Act.
Section 3. Amended and Restated Trust Agreement. The Depositor and the
Trustees will enter into an amended and restated Trust Agreement, satisfactory
to each such party and substantially in the form included as an exhibit to the
1933 Act Registration Statement (as defined below), to provide for the
contemplated operation of the Trust created hereby and the issuance of the
Preferred Securities (as defined below) and common securities referred to
therein. Prior to the execution and delivery of such amended and restated Trust
Agreement, the Trustees shall not have any duty or obligation hereunder or with
respect to the trust estate, except as otherwise required by applicable law or
as may be necessary to obtain prior to such execution and delivery any licenses,
consents or approvals required by applicable law or otherwise.
Section 4. Certain Authorizations. The Depositor and the Trustees hereby
authorize the Depositor, as the sponsor of the Trust, (i) to file with the
Securities and Exchange Commission (the "Commission") and execute, in each case
on behalf of the Trust, (a) the Registration Statement on Form S-3 (the "1933
Act Registration Statement"), including
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any pre-effective or post-effective amendments to such 1933 Act Registration
Statement (including the prospectus and the exhibits contained therein),
relating to the registration under the Securities Act of 1933, as amended, of
the preferred securities of the Trust (the "Preferred Securities") and possibly
certain other securities and (b) a Registration Statement on Form 8-A (the "1934
Act Registration Statement") (including all pre-effective and post-effective
amendments thereto) relating to the registration of the Preferred Securities of
the Trust under Section 12(b) of the Securities Exchange Act of 1934, as
amended; (ii) to file with the New York Stock Exchange or any other national
stock exchange or The Nasdaq National Market (each, an "Exchange") and execute
on behalf of the Trust one or more listing applications and all other
applications, statements, certificates, agreements and other instruments as
shall be necessary or desirable to cause the Preferred Securities to be listed
on any of the Exchanges; (iii) to file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as shall be
necessary or desirable to register the Preferred Securities under the securities
or blue sky laws, and to obtain any permits under the insurance laws of such
jurisdictions as the Depositor, on behalf of the Trust, may deem necessary or
desirable; (iv) to execute on behalf of the Trust letters or documents, or
instruments for filing with, a depository relating to the Preferred Securities;
and (v) to execute on behalf of the Trust one or more underwriting agreements
with one or more underwriters relating to the offering of the Preferred
Securities.
In the event that any filing referred to in clauses (i) through (iv) above
is required by the rules and regulations of the Commission, an Exchange or any
state securities or blue sky laws, to be executed on behalf of the Trust by the
Trustees, in their capacities as Trustees of the Trust, the Trustees are hereby
authorized and directed to join in any such filing and to execute on behalf of
the Trust any and all of the foregoing, it being understood that Norwest Bank
Minnesota, National Association and The Bank of New York (Delaware), in their
capacities as Trustees of the Trust, shall not be required to join in any such
filing or execute on behalf of the Trust any such document unless required by
the rules and regulations of the Commission, an Exchange or any state securities
or blue sky laws. In connection with all of the foregoing, the Depositor and
each Trustee, solely in its capacity as Trustee of the Trust, hereby constitutes
and appoints Xxxxx X. XxXxxxxx and Xxxxx X. Xxxxxx, and each of them, as his,
her or its, as the case may be, true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for the Depositor or in the
Depositor's name, place and stead, in any and all capacities, to sign the 1933
Act Registration Statement and any and all amendments (including post-effective
amendments) thereto and the 1934 Act Registration Statement and any and all
amendments (including post-effective amendments) thereto and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as fully to all intents and purposes as the
Depositor might or could do in per-
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son, hereby ratifying and confirming all that said attorneys-in-fact and agents
or any of them, or their respective substitute or substitutes, shall do or cause
to be done by virtue hereof.
Section 5. Counterparts. This Trust Agreement may be executed in one or
more counterparts.
Section 6. Trustees. The number of Trustees initially shall be four (4) and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Depositor which may increase
or decrease the number of Trustees; provided, however, that to the extent
required by the Business Trust Act, one Trustee shall either be 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 and
otherwise meets the requirements of applicable Delaware law. Subject to the
foregoing, the Depositor is entitled to appoint or remove without cause any
Trustee at any time. A Trustee may resign upon thirty days' prior notice to the
Depositor.
Section 7. Delaware Trustee. The Bank of New York (Delaware), in its
capacity as Trustee, shall not have any of the powers or duties of the Trustees
set forth herein (except as may be required under the Business Trust Act) and
shall be a Trustee of the Trust for the sole purpose of satisfying the
requirements of Section 3807(a) of the Business Trust Act.
Section 8. Governing Law. This Trust Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware (without regard
to conflict of laws principles).
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IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
THE EMPIRE DISTRICT ELECTRIC COMPANY,
as Depositor
By: /s/ Xxxxx X. XxXxxxxx
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Name: Xxxxx X. XxXxxxxx
Title: President
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Property Trustee
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Corporate Trust Officer
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: Senior Vice President
/s/ Xxxxx X. XxXxxxxx
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Xxxxx X. XxXxxxxx, as Administrative Trustee
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, as Administrative Trustee
