Exhibit 4.8
DECLARATION OF TRUST, dated as of March 12, 2002 between Peoples Energy
Corporation, an Illinois corporation, as Sponsor (the "SPONSOR"), and Bank One
Trust Company National Association, as trustee (the "PROPERTY TRUSTEE"), Bank
One Delaware, Inc., as trustee (the "DELAWARE TRUSTEE"), and Xxxxxx X. Xxxxx, as
trustee (the "ADMINISTRATIVE TRUSTEE," and together with the Property Trustee
and the Delaware Trustee, the "TRUSTEES"). The Sponsor and the Trustees hereby
agree as follows:
1. The Delaware business trust created hereby shall be known as "PEC
Funding Trust I" (the "TRUST"), in which name the Trustees, or the Sponsor to
the extent provided herein, may conduct the business of the Trust, make and
execute contracts, and xxx and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trust the sum of $10. The Trust hereby acknowledges receipt of such amount from
the Sponsor, which amount shall constitute the initial trust estate. 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. CODE
SS.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 Secretary of State
of the State of Delaware in the form attached hereto in accordance with the
provisions of the Business Trust Act. The trust is hereby established by the
Sponsor and the Trustees for the purposes of (i) issuing preferred securities
representing undivided beneficial interests in the assets of the Trust
("PREFERRED SECURITIES") in exchange for cash and investing the proceeds thereof
in debt securities of the Sponsor, (ii) issuing and selling common securities
representing an undivided beneficial interest in the assets of the Trust
("COMMON SECURITIES") to the Sponsor in exchange for cash and investing the
proceeds thereof in additional debt securities of the Sponsor and (iii) engaging
in such other activities as are necessary or incidental thereto.
3. The Sponsor and the Trustees will enter into an Amended and Restated
Declaration of Trust, satisfactory to each such party and substantially in the
form included as an exhibit to the Securities Act Registration Statement
referred to below, to provide for the contemplated operation of the Trust
created hereby and the issuance of the Preferred Securities and Common
Securities referred to therein. Prior to the execution and delivery of such
Amended and Restated Declaration of Trust, 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.
4. The Sponsor, as the sponsor of the Trust, is hereby authorized (i)
to prepare and file with the Securities and Exchange Commission (the
"COMMISSION") and execute, in each case on behalf of the Trust, (a) a
Registration Statement on Form S-3 or on such other form or forms as may be
appropriate, including without limitation any registration statement of the type
contemplated by Rule 462(b) of the Securities Act of 1933, as amended (the
"SECURITIES ACT") (any such registration statement, whether on form S-3, another
form or under Rule 462(b) being referred to herein as the "SECURITIES
ACT REGISTRATION STATEMENT"), including any pre-effective or post-effective
amendments to such Registration Statement, relating to the registration under
the Securities Act of the Preferred Securities and certain other securities of
the Sponsor and (b) if the Sponsor shall deem it desirable, a Registration
Statement on Form 8-A (the "EXCHANGE ACT REGISTRATION STATEMENT"), including all
pre-effective and post-effective amendments thereto, relating to the
registration of the Preferred Securities under Section 12 of the Securities
Exchange Act of 1934, as amended; (ii) if the Sponsor shall deem it desirable,
to prepare and file with New York Stock Exchange, Inc. or any other automated
quotation system, exchange or over-the-counter market (collectively, the
"EXCHANGES") and execute on behalf of the Trust a listing application or
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 Exchange; (iii) to prepare and 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 the Sponsor, on behalf of the Trust, may deem necessary or
desirable to register the Preferred Securities under the securities or "Blue
Sky" laws of such jurisdictions as the Sponsor, on behalf of the Trust, may deem
necessary or desirable; (iv) to negotiate the terms of and execute on behalf of
the Trust an underwriting or other purchase agreement among the Trust, the
Sponsor and any underwriter(s), dealer(s) or agent(s) relating to the Preferred
Securities, as the Sponsor, on behalf of the Trust, may deem necessary or
desirable; and (v) to execute and deliver on behalf of the Trust letters or
documents to, or instructions for filing with, a depository relating to the
Preferred Securities. In the event that any filing referred to in clauses
(i)-(iii) above is required by the rules and regulations of the Commission, any
Exchange, the National Association of Securities Dealers, Inc. or state
securities or blue sky laws, to be executed on behalf of the Trust by a Trustee,
any natural person appointed pursuant to Section 6 hereof, in his or her
capacity as trustee of the Trust, and the Sponsor are hereby authorized to join
in any such filing and to execute on behalf of the Trust any and all of the
foregoing.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be three (3) 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 Sponsor that may increase or decrease the
number of Trustees; PROVIDED, HOWEVER, that the number of Trustees shall in no
event be less than three (3); and PROVIDED FURTHER 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 that
has its principal place of business in the State of Delaware and meets other
requirements imposed by applicable law. Subject to the foregoing, the Sponsor is
entitled to appoint or remove without cause any Trustee at any time. Any Trustee
may resign upon thirty days' prior notice to the Sponsor.
7. The Trust may be dissolved and terminated at the election of the
Sponsor.
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8. This Declaration of Trust shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
9. Notwithstanding any other provision of this Declaration, the
Delaware Trustee shall not be entitled to exercise any of the powers, nor shall
the Delaware Trustee have any of the duties and responsibilities of the Trustees
described in this Declaration. The Delaware Trustee shall be a Trustee for the
sole and limited purpose of fulfilling the requirements of Section 3807(a) of
the Business Trust Act. Notwithstanding anything herein to the contrary, the
Delaware Trustee shall not be liable for the acts or omissions to act of the
Trust or of the Property Trustee or the Administrative Trustee except such acts
as the Delaware Trustee is expressly obligated to undertake under this
Declaration or the Business Trust Act and except for the gross negligence or
willful misconduct of the Delaware Trustee.
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IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be duly executed as of the day and year first above written.
PEOPLES ENERGY CORPORATION,
as Sponsor
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: Senior Vice President, Chief Financial Officer and
Treasurer
BANK ONE TRUST COMPANY NATIONAL ASSOCIATION,
as Property Trustee
By: /s/ XXXXX XXXXX
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Name: Xxxxx Xxxxx
Title: Vice President
BANK ONE DELAWARE, INC.,
as Delaware Trustee
By: /s/ XXXXX XXXXX
--------------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
XXXXXX X. XXXXX,
as Administrative Trustee
/s/ XXXXXX X. XXXXX
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