EXHIBIT 4(S)
TRUST AGREEMENT
OF ALLETE CAPITAL III
This TRUST AGREEMENT of ALLETE Capital III (the "Trust"), dated as of
March 13, 2001, among (i) ALLETE (legally incorporated as Minnesota Power,
Inc.), a Minnesota corporation (the "Depositor"), (ii) The Bank of New York, a
New York banking corporation (the "Property Trustee"), not in its individual
capacity but solely as trustee of the Trust, (iii) The Bank of New York
(Delaware), a Delaware banking corporation (the "Delaware Trustee"), not in its
individual capacity but solely as trustee of the Trust, and (iv) Xxxxxx X.
Xxxxxxxxx, an individual employed by the Depositor or one of its affiliates, not
in his individual capacity but solely as trustee of the Trust (the
"Administrative Trustee") (the Administrative Trustee, together with any
administrative trustees appointed by the Depositor after the date hereof, the
"Administrative Trustees") (each of such trustees in (ii), (iii) and (iv) a
"Trustee" and collectively, the "Trustees"). The Depositor and the Trustees
hereby agree as follows:
1. The trust created hereby shall be known as "ALLETE Capital
III", 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.
2. The Depositor hereby assigns, transfers, conveys and sets over
to the Trustees the sum of $10. The Trustees hereby acknowledge receipt of such
amount in trust from the Depositor, which amount shall constitute the initial
trust estate. The Trustees hereby declare that they will hold the trust estate
in trust 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. 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 accordance with
the provisions of the Business Trust Act.
3. The Depositor and the Trustees will enter into an amended and
restated Trust Agreement, satisfactory to each such party and substantially in
the form to be included as an exhibit to the 1933 Act Registration Statement
referred to below, to provide for the contemplated operation of the Trust
created hereby and the issuance of the preferred trust securities and common
trust 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 of 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 Depositor and the Trustees hereby authorize and direct
each of the Administrative Trustees, and the Depositor, acting singly or
together, (and, in the case of (iv) below, Xxxxxx X. Xxxxx, Xx., as authorized
representative of the Trust) (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 (the "1933 Act Registration
Statement") (including any pre-effective or post-effective amendments thereto),
relating to the registration under the Securities Act of 1933, as amended, of
the preferred trust securities of the Trust and 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 trust securities of the Trust under Section
12(b) or 12(g) of the Securities Exchange Act of 1934, as amended, (ii) to
prepare and file with The New York Stock Exchange, Inc. (the "Exchange") and
execute on behalf of the Trust a listing application and all other applications,
statements, certificates, agreements and other instruments as shall be necessary
or desirable to cause the preferred trust securities to be listed on the
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 shall be
necessary or desirable to register the preferred trust securities under the
securities or blue sky laws of such jurisdictions as the Depositor or the
Administrative Trustee, on behalf of the Trust, may deem necessary or desirable
and (iv) to execute and deliver, on behalf of the Trust, an underwriting
agreement in respect of the sale of the preferred trust securities in such form
as the Depositor shall approve. In the event that any filing referred to above
is required by the rules and regulations of the Commission, the Exchange or
state securities or blue sky laws, to be executed on behalf of the Trust by one
or more of the Trustees, each of the Trustees, in its or his capacity as Trustee
of the Trust, is hereby authorized and, to the extent so required, 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 the Property Trustee and the Delaware
Trustee, in their capacities as Trustees of the Trust, respectively, 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,
the Exchange or state securities or blue sky laws. In connection with the
filings referred to above, the Depositor and each Trustee, solely in its or his
capacity as trustee of the Trust, hereby constitutes and appoints Xxxxx X.
Xxxxxxx, Xxxxxx X. Xxxxxxxxx, Xxxxx X. Xxxxxxx and Xxxxxx X. Xxxxx, Xx., and
each of them, as its or his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for the Depositor or such Trustee
or in the Depositor's or such Trustee's name, place and stead, in any and all
capacities, to sign any and all filings and amendments (including post-effective
amendments) to any of such filings (including the 1933 Act Registration
Statement and the 1934 Act Registration Statement) and to file the same, with
all exhibits thereto and other documents in connection therewith, with the
Commission, the Exchange and securities or blue sky administrators, 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 or
such Trustee might or could do in person, 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.
5. This Trust Agreement 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 set forth in the
amended and restated Trust Agreement or 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 be either 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
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time. Any one or more of the Trustees may resign upon thirty (30) days prior
written notice to Depositor.
7. The Depositor shall have the right to dissolve the Trust at
any time prior to the issuance of any preferred trust security. Upon dissolution
of the Trust pursuant to this Section 7, each of the Administrative Trustees,
acting singly, is hereby authorized to prepare, execute and file a Certificate
of Cancellation in respect of the Trust with the Secretary of State of the State
of Delaware.
8. 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.
ALLETE
(legally incorporated as Minnesota Power, Inc.),
as Depositor
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President, General Counsel
& Secretary
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Trustee
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity but
solely as Trustee
By: /s/ Xxxxxxx Xxxxx
------------------------------------------
Name: Xxxxxxx Xxxxx
Title: SVP
XXXXXX X. XXXXXXXXX,
not in his individual capacity
but solely as Trustee
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------
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CERTIFICATE OF TRUST
OF
ALLETE CAPITAL III
THIS CERTIFICATE OF TRUST of ALLETE Capital III (the "Trust"), dated
as of March 13, 2001, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. C. ss. 3801, et seq.).
1. Name. The name of the business trust being created hereby is ALLETE
Capital III.
2. Delaware Trustee. The name and business address of the trustee of
the Trust with a principal place of business in the State of Delaware are The
Bank of New York (Delaware), Xxxxx Xxxx Center, Xxxxx 000, Xxxxxx, Xxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000.
3. Effective Date. This Certificate of Trust shall be effective as of
its filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being the only trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
THE BANK OF NEW YORK XXXXXX X. XXXXXXXXX
not in its individual capacity Not in his individual capacity
but solely as Trustee but solely as Trustee
By: /s/ Xxxxxx X. Xxxxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------- -------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity
but solely as Trustee
By: /s/ Xxxxxxx Xxxxx
-------------------------------
Name: Xxxxxxx Xxxxx
Title: SVP
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