EXHIBIT 4.1
STATE OF NEBRASKA )
) ss.
COUNTY OF XXXXXXX )
WHEREAS, Xxxxx Xxxxxx Sons', Inc., a Delaware corporation with its
principal office in Omaha, Nebraska (the "Company"), on May 17, 1982, executed
a Trust Indenture entitled the "KIEWIT ROYALTY TRUST INDENTURE";
WHEREAS, the Omaha National Bank of Omaha, Nebraska, named as Trustee
by such Trust Indenture executed by the Company an May 17, 1982, executed such
Trust Indenture and thereby accepted the Trust and agreed on May 17, 1982 to
act as Trustee and to accept the Conveyances (hereinafter defined);
WHEREAS, in Section 10.01 of ARTICLE X of such Trust Indenture, the
Company reserved the power to alter, amend or modify the Trust in any manner,
in its sole discretion, on or before June 25, 1982, by executing an amendment
document and delivering it to the Trustee in the manner provided in such Trust
Indenture; and
WHEREAS, on June 9, 1982, the Company and Omaha National Bank executed
an amended Trust Indenture pursuant to such power; and
WHEREAS, the Company desires to again exercise such power and, for
ease of reference, to restate the Trust Indenture in its entirety;
NOW THEREFORE, this 23rd day of June, 1982, the Company does hereby
amend the KIEWIT ROYALTY TRUST INDENTURE to read in its entirety as follows:
KIEWIT ROYALTY TRUST INDENTURE
This Kiewit Royalty Trust Indenture is entered into as of the 17th day
of May, 1982, by and between Xxxxx Xxxxxx Sons', Inc., a Delaware corporation
with its principal office in Omaha, Nebraska (the "Company"), as Trustor, and
the Omaha National Bank, a banking institution organized under the laws of the
United States with its principal place of business at 17th and Farnam Streets,
Omaha, Nebraska (the "Bank"), as Trustee.
WHEREAS, the Company and its subsidiaries presently own certain
valuable royalty and overriding royalty interests in properties which contain
coal reserves; and
WHEREAS, the Company has decided that it would be in the best interest
of its shareholders to distribute to them certain of such royalty and
overriding royalty interests; and
WHEREAS, since it would be impractical to distribute undivided
interests in each such royalty and overriding royalty interest to each
shareholder, the Company desires to convey such royalty and overriding royalty
interests to the Bank to be held in trust as more particularly provided
herein, and the Bank has agreed to accept such conveyances on such terms.
NOW THEREFORE, the Bank accepts the sum of One Hundred Dollars ($100),
the receipt of which is acknowledged, and agrees to accept the Conveyances
(hereinafter defined) and the assets described therein for the purposes and
subject to the terms and conditions hereafter provided.
ARTICLE I.
DEFINITIONS
As used herein, the following terms have the meanings indicated:
1.01 "Business Day" means any day which is not a Saturday, Sunday or
other day on which national banking institutions in the City of Omaha,
Nebraska are closed as authorized or required by law.
1.02. "Beneficial Interest" means the equitable interest in the Trust
Estate, including without limitation the proceeds from conversion of the
Royalties to cash, and the right to cash resulting from such conversion of the
Royalties.
1.03. "Certificate" means a certificate issued by the Trustee
pursuant to Article IV evidencing the ownership of one or more Units.
1.04. "Certificate Holder" means the owner of a Certificate as
reflected on the books of the Trustee pursuant to Article IV.
1.05. "Code" means the Internal Revenue Code of 1954, as it is from
time to time amended.
1.06. "Conveyances" means the conveyances described in Schedule 1
hereto.
1.07. "Entity" means a corporation, partnership, trust, estate or
other organization.
1.08. "Indenture" means this instrument, as originally executed, or,
if amended or supplemented, as so amended or supplemented.
1.09. "Issue" means descendants in any degree of the ancestor
designated.
1.10. "Monthly Distribution Amount" for each calendar month means the
excess, if any, of (a) the cash received during such month which is
attributable to the Royalties, plus any decrease in any cash reserve
theretofore established by the Trustee for the payment of liabilities of the
Trust, plus any other cash receipts of the Trust during such month other than
interest earned on the Monthly Distribution Amount for any other month which
is earned before the Payment Date for the fiscal quarter which includes that
other month over (b) the liabilities of the Trust paid during such month plus
the amount of any cash reserve established or increased by the Trustee for the
payment of any future or contingent liabilities of the Trust.
1.11. "Monthly Record Date" for each month means the close of
business on the last Business Day of such month.
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1.12. "Payment Date" means the day following the end of a fiscal
quarter on which the Trustee makes distributions to Certificate Holders
pursuant to Section 5.02 of this Indenture.
1.13. "Person" means an individual or Entity.
1.14. "Royalties" means the royalty and overriding royalty interests
conveyed to the Trustee pursuant to the Conveyances.
1.15. "Transferee" as to any Certificate Holder or former Certificate
Holder means any Person succeeding to the interest of such Certificate Holder
or former Certificate Holder in one or more Units of the Trust, whether as
purchaser, donee, legatee or otherwise.
1.16. "Trust" means the trust created by and administered under the
terms of this Indenture.
1.17. "Trust Estate" means the assets held by the Trustee under this
Indenture, and shall include both income and principal.
1.18. "Trustee" means the Entity serving as Trustee under this
instrument, during the period it is so serving in such capacity, and shall
include its corporate successor, and assignee by merger, consolidation,
purchase or otherwise.
1.19. "Unit" means an undivided fractional interest in the Beneficial
Interest.
ARTICLE II.
NAME AND PURPOSE OF THE TRUST
2.01. NAME. The Trust shall be known as the Kiewit Royalty Trust,
and the Trustee may transact its affairs in that name.
2.02. PURPOSES. The purposes of the Trust are:
(a) to convert the Royalties to cash either (1) by
retaining them and collecting the proceeds of production until
production has ceased or the Royalties have otherwise terminated, or
(2) by selling the Royalties in accordance with the terms of this
Indenture; and
(b) to distribute such cash, including interest income
earned thereon, net of amounts for payment of liabilities of the Trust,
to the Certificate Holders pro rata.
It is the intention of the Company and the Trustee to create, for the
benefit of the Certificate Holders, a grantor trust of which such Certificate
Holders are the grantors for Federal income tax purposes. As set forth above
and amplified herein, the Trust is intended to be a passive entity limited to
the receipt of revenues attributable to the Royalties and the distribution of
such revenues, after payment of or provision for Trust expenses and
liabilities, to the Certificate Holders. It is neither the intention nor the
purpose of the parties hereto to create, and
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nothing in this Indenture shall be construed as creating, a partnership, joint
venture, joint stock company or business association, between or among
Certificate Holders hereunder, present or future, or among or between the
Certificate Holders, or any of them, and the Trustee.
ARTICLE III.
ADMINISTRATION OF THE TRUST
3.01. MANAGEMENT OF ROYALTIES. Subject to the limitations set forth
in this Indenture, the Trustee is authorized to take such action as in its
judgment is necessary or advisable best to achieve the purposes of the Trust,
provided, however, that the Trustee may not sell all or any part of any of the
Royalties except as provided in Sections 3.02 and 9.03. The Trustee is
expressly authorized to retain any of the Royalties in the form in which such
property was transferred to the Trustee, without regard to any requirement to
diversify investments or other requirements.
3.02. LIMITED POWER TO SELL ROYALTIES. If approved by the Certificate
Holders present or represented at a meeting held in accordance with the
requirements of Article VIII, the Trustee may sell at any time and from time
to time all or any part of any of the Royalties for cash in such a manner as
it deems in the best interest of the Certificate Holders, but it may not sell
all or any part of the Royalties for any consideration other than cash. This
Section 3.02 shall not be construed to require approval of the Certificate
Holders for any sale of all or any part of the Royalties pursuant to Section
9.03.
3.03. NO POWER TO ENGAGE IN BUSINESS OR MAKE INVESTMENTS. The Trustee
shall not, in its capacity as Trustee under the Trust, acquire any coal lease,
royalty or other mineral interest other than the Royalties, or except as
permitted in Section 3.04, acquire any other asset or engage in any business
or investment activity of any kind whatsoever.
3.04. INTEREST ON CASH ON HAND. Cash being held by the Trustee as a
reserve for liabilities or for distribution at the next Payment Date shall, to
the extent not prohibited by law, be placed in accounts or certificates of the
Trustee bank and shall bear interest at a rate which is equal to the greater
of: (1) the average rate realized by the Trustee bank on master notes utilized
by it during the period the cash is held by said bank, or, (2) the interest
rate which the Trustee bank pays in the normal course of business on amounts
placed with it, taking into account the amounts involved, the period held and
other relevant factors. Any amount which may not by law be so placed shall be
placed in accounts or certificates of a bank which is not an affiliate of the
Trustee on terms and conditions substantially similar to those described above
with respect to the Trustee bank. Any certificates must mature on or before
the next succeeding Payment Date and must be held until maturity.
3.05. POWER TO SETTLE CLAIMS. The Trustee is authorized to prosecute
or defend, and to settle by arbitration or otherwise, any claim of or against
the Trustee, the Trust, or the Trust Estate, to waive or release rights of any
kind and to pay or satisfy any debt, tax or claim upon any evidence by it
deemed sufficient.
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3.06. POWER TO CONTRACT FOR SERVICES. If necessary to the administration
of the Trust, the Trustee is empowered to employ geologists, engineers,
accountants, attorneys and other professional and expert persons and to make
payments of all fees for services or expenses in any manner thus incurred out of
the Trust Estate.
3.07. PAYMENT OF LIABILITIES OF TRUST. The Trustee may and shall use
the money received by it in the payment of all liabilities of the Trust,
including but without limiting the generality of the foregoing, all expenses,
taxes, liabilities incurred of all kinds, compensation to it for its services
hereunder, and compensation to such parties as may be consulted as provided
for in Section 3.06 hereof.
3.08. ESTABLISHMENT OF RESERVES. With respect to any liability which
is contingent or uncertain in amount or which otherwise is not currently due
and payable, the Trustee in its sole discretion may, but is not obligated to,
establish a cash reserve for the payment of such liability. The Trustee shall
not, however, maintain a reserve for depletion of the mineral assets in the
Trust Estate.
3.09. INCOME AND PRINCIPAL. The Trustee shall be required to keep
separate accounts or records for income and principal.
3.10. TERM OF CONTRACTS. In exercising the rights and powers granted
hereunder, the Trustee, unless expressly prohibited elsewhere in this
Indenture, is authorized to make the term of any transaction or contract or
other instrument extend beyond the term of the Trust.
3.11. TRANSACTIONS BETWEEN TRUSTS. Trustee shall not be prohibited
in any way in exercising its powers from making contracts or having dealings
with itself in any other fiduciary capacity.
3.12. NO BOND REQUIRED. The Trustee shall not be required to furnish
any bond or security of any kind.
3.13. MISCELLANEOUS. Except as otherwise provided in this Indenture,
this Indenture and the Trust shall be governed, construed, administered and
controlled by and under the laws of the State of Nebraska and the rights,
powers, duties and liabilities of the Trustee shall be in accordance with and
governed by the terms and provisions of the applicable laws of the State of
Nebraska in effect at any applicable time.
ARTICLE IV.
BENEFICIAL SHARES AND CERTIFICATES
4.01. CREATION AND DISTRIBUTION. Initially, the Company shall own the
entire Beneficial Interest. However, the Company intends to distribute no
later than June 28, 1982, the entire Beneficial Interest on a pro rata basis
to its shareholders who are citizens of the United States. Accordingly, on the
date of distribution to the shareholders, the entire Beneficial Interest shall
be divided into that number of Units which is equal to the number of whole
shares of Common Stock of the Company held by U. S. citizens on the record
date selected by the
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Company. The ownership of the Units shall be evidenced by Certificates in
substantially the form set forth on Schedule 2 hereto, including the legend
thereon, containing such changes or alterations of form, but not substance, as
the Trustee shall from time to time, in its discretion, deem necessary or
desirable. The Trustee shall forthwith issue a Certificate to each such
shareholder evidencing the number of Units distributed to him by the Company.
4.02. RIGHTS OF CERTIFICATE HOLDERS. The Certificate Holders shall
own pro rata the Beneficial Interest and shall be entitled to participate pro
rata in the rights and benefits of the Certificate Holders under this
Indenture. A Transferee takes and holds the same subject to all the terms and
provisions of this Indenture, which shall be binding upon and inure to the
benefit of the successors, assigns, legatees, heirs and personal
representatives of the Certificate Holder. By a transfer of one or more Units
represented by a Certificate, the Transferor thereby shall, with respect to
such transferred Unit or Units, part with, except as provided in Section 4.04
in the case of a transfer after a Monthly Record Date and prior to the
corresponding Payment Date, (i) all his Beneficial Interest attributable
thereto; (ii) all his rights in, to and under such Certificate; and (iii) all
interests, rights and benefits under this Trust of a Certificate Holder which
are attributable to such Unit or Units as against all other Certificate
Holders and the Trustee. The Certificates, the Units, and the rights, benefits
and interests evidenced by either or both (including without limiting the
foregoing, the entire Beneficial Interest) are and shall be held and construed
to be in all respects intangible personal property, and the Certificates and
Units evidenced thereby shall be bequeathed, assigned, disposed of and
distributed as intangible personal property. No Certificate Holder as such
shall have any legal title in or to any property interest which is a part of
the Trust Estate, including, without limiting the foregoing, the Royalties or
any part thereof, but the sole interest of each Certificate Holder shall be
his interest in the Beneficial Interest and the obligation of the Trustee to
hold, manage and dispose of the Trust Estate and to account for the same as in
this Indenture provided. No Certificate Holder shall have the right to call
for or demand or secure any partition of the royalties during the continuance
of the Trust or during the period of liquidation and winding up under Section
9.03.
4.03. EXECUTION OF CERTIFICATES. All Certificates shall be signed by
a duly authorized officer of the Trustee. Any such signature may be the manual
or facsimile signature of such officers and may be affixed, imprinted or
otherwise reproduced on the Certificate.
4.04. REGISTRATION AND TRANSFER OF UNITS. The Units shall be
transferable as against the Trustee only on the records of the Trustee upon
the surrender of Certificates and compliance with such reasonable regulations
as it may prescribe, including regulations designed to ensure compliance with
any laws or governmental regulations restricting ownership of interests in
federal or state coal leases. Where a Transferor has been the owner of record
for a period of less than three years, or in any other circumstance involving
a transfer where the Trustee deems it appropriate, the Trustee shall, prior to
effecting a transfer involving a purchase of Units, be provided by the
Transferor, at the Transferor's expense, with an opinion of counsel
satisfactory to the Trustee that the Units will be transferred in compliance
with federal and state securities law requirements. No service charge shall be
made to the Transferor or Transferee for any transfer of a Unit, but the
Trustee may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto. Until any such
transfer the Trustee may treat the owner of any Certificate as shown by its
records as the owner of the Units evidenced thereby and shall not be charged
with notice of any claim or demand respecting
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such Certificate or the interest represented thereby by any other party. Any
such transfer of a Unit shall, as to the Trustee, transfer to the Transferee
as at the close of business on the date of transfer all of the undivided
right, title and interest of the Transferor in and to the Beneficial Interest
with respect to such Unit, provided that a transfer of a Unit after any
Monthly Record Date shall not transfer to the Transferee the right of the
Transferor to any sum payable to him as the holder of the Unit on said day. In
the event that a Certificate Holder transfers, in accordance with the
following, less than all of the Units evidenced by a Certificate, the Trustee
shall reissue a Certificate to the Transferor evidencing the number of Units
retained by the Transferor and shall issue a new Certificate to each
Transferee evidencing the Units transferred to such Transferee. As to matters
affecting the title, ownership, warranty or transfer of Certificates, Article
8 of the Uniform Commercial Code and other statutes and rules with respect to
the transfer of securities, each as adopted and then in force in the State of
Nebraska, shall govern and apply. The death of any Certificate Holder shall
not entitle the Transferee to an account or valuation for any purpose, but
such Transferee shall succeed to all rights of the deceased Certificate Holder
under this Indenture upon proper proof of title, satisfactory to the Trustee.
4.05. MUTILATED, LOST, STOLEN AND DESTROYED CERTIFICATES. If any
Certificate should become lost, stolen, destroyed or mutilated, the Trustee,
in its discretion and upon proof satisfactory to the Trustee, together with a
surety bond sufficient in the opinion of the Trustee to indemnify the Trustee
against all loss or expenses in the premises, and surrender of a mutilated
Certificate, may issue a new Certificate to the holder of such lost, stolen,
destroyed or mutilated Certificate as shown by the records of the Trustee,
upon payment of a reasonable charge of the Trustee and any reasonable expenses
incurred by it in connection therewith.
4.06. PROTECTION OF TRUSTEE. The Trustee shall be protected in acting
upon any notice, credential, certificate, assignment or other document or
instrument believed by the Trustee to be genuine and to be signed by the
proper party or parties. The Trustee is specifically authorized to rely upon
the application of Article 8 of the Uniform Commercial Code and the
application of other statutes and rules with respect to the transfer of
securities, each as adopted and then in force in the State of Nebraska, as to
all matters affecting title, ownership, warranty or transfer of the
Certificates and the Units represented thereby, without any personal liability
for such reliance, and the indemnity granted under Section 6.02 shall
specifically extend to any matters arising as a result thereof.
Notwithstanding the foregoing, the Trustee shall be liable for its own
negligence.
4.07. DETERMINATION OF OWNERSHIP OF CERTIFICATES. In the event of any
disagreement between persons claiming to be Transferees of any Certificate
Holder, the Trustee shall be entitled at its option to refuse to recognize any
such claims so long as such disagreement shall continue. In so refusing, the
Trustee may elect to make no delivery or other disposition of the interest
represented by the Certificate involved, or any part thereof, or of any sum or
sums of money, accrued or accruing thereunder, and, in so doing, the Trustee
shall not be or become liable to any Person for the failure or refusal of the
Trustee to comply with such conflicting claims, and the Trustee shall be
entitled to continue so to refrain and refuse so to act, until
(a) the rights of the adverse claimants have been adjudicated
by a final judgment of a court assuming and having jurisdiction of the
parties and the interest and money involved, or
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(b) all differences have been adjusted by valid agreement
between said parties and the Trustee shall have been notified thereof
in writing signed by all of the interested parties.
ARTICLE V.
ACCOUNTING, DISTRIBUTIONS, REGISTRATIONS AND OTHER REPORTS
5.01. FISCAL YEAR AND ACCOUNTING METHOD. The Trustee may adopt any
fiscal year it elects, and shall maintain its books in accordance with
generally accepted accounting principles.
5.02. DISTRIBUTIONS. Within ten days after the end of each fiscal
quarter, the Trustee shall, for each of the immediately preceding three
months, distribute pro rata the Monthly Distribution Amount for each such
month, together with interest earned on each such amount to such Payment Date,
to the Certificate Holders of record on the Monthly Record Date for each such
month.
5.03. FEDERAL INCOME TAX REPORTING. For federal income tax purposes,
the Trustee shall file such returns and statements as in its judgment are
required to comply with applicable provisions of the Code and regulations and
to permit each Certificate Holder correctly to report his share of the income
and deductions of the Trust. The Trustee intends to treat all income and
deductions of the Trust for each month as having been realized on the Monthly
Record Date for such month unless otherwise advised by counsel or the Internal
Revenue Service.
5.04. GOVERNMENT FILINGS. In addition to the returns and statements
to be filed with the Internal Revenue Service pursuant to Section 5.03, above,
Trustee shall file any other documents with state or federal governmental
agencies which in its judgment are necessary to ensure the continued validity
of the Trust and its compliance with requirements of law. Further, the Trustee
shall register the Units of the Trust with the Securities Exchange Commission
(S.E.C.) pursuant to Section 12(g) of the Securities Exchange Act of 1934.
Such filing shall be made as soon as practicable after establishment of the
Trust, but in no event should said filing be made later than 120 days after
the close of the first fiscal year of the Trust. Additionally, the Trustee
shall file periodic reports with the S.E.C. in accordance with applicable
S.E.C. rules and regulations.
5.05. REPORTS TO CERTIFICATE HOLDERS. Within 90 days following the
end of each fiscal year, the Trustee shall mail to each Certificate Holder of
record on a date to be selected by the Trustee, an annual report containing
financial statements audited by a nationally recognized firm of independent
public accountants selected by the Trustee. Notwithstanding the foregoing, the
Trustee shall furnish to the Certificate Holders such reports, in such manner,
as are at any time required by law or applicable regulations.
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ARTICLE VI.
LIABILITY OF TRUSTEE AND METHOD OF SUCCESSION
6.01 LIABILITY OF TRUSTEE.
(a) Except as provided in paragraph (b) below, the Trustee,
in carrying out its powers and performing its duties, may act in its
discretion and shall be personally or individually liable only for
fraud or for acts or omissions in bad faith or gross negligence and
shall not be liable for any act or omission of any agent or employee
of the Trustee unless the Trustee has acted negligently or in bad
faith in the selection and retention of such agent or employee.
(b) If the Trustee enters into a contract on behalf of the
Trust Estate without ensuring that any liability arising out of such
contract shall be satisfiable only out of the Trust Estate and shall
not in any event, including the exhaustion of the Trust Estate, be
satisfiable out of amounts at any time distributed to any Certificate
Holder or out of any other assets owned by any Certificate Holder,
then Trustee, vis-a-vis the Certificate Holders, shall be fully and
exclusively liable for such liability, but shall have the right to be
indemnified by and reimbursed from the Trust Estate to the extent
provided in Section 6.02.
6.02. INDEMNIFICATION OF TRUSTEE. The Trustee shall be indemnified
by, and receive reimbursement from, the Trust Estate against and from any and
all liability, expense, claims, damages, or loss incurred by it as Trustee in
the administration of the Trust and the Trust Estate or any part or parts
thereof, or in the doing of any act done or performed or omission occurring on
account of its being Trustee, except such liability, expense, claims, damages
or loss as to which it is liable under Section 6.01(a). Trustee shall have a
lien upon the Trust Estate to secure it for such indemnification and
reimbursement and for compensation to be paid to Trustee. Except as provided
in Section 4.05, neither the Trustee nor any agent or employee of the Trustee
shall be entitled to any reimbursement or indemnification from any Certificate
Holder for any liability, expense, claims, damages or loss incurred by the
Trustee or any such agent or employee, their right of reimbursement and
indemnification, if any, being limited solely to the Trust Estate.
6.03. RESIGNATION OF TRUSTEE. The Trustee may resign, with or without
cause, at any time by written notice to each of the then Certificate Holders,
given by registered mail addressed to each such holder at his last known post
office address as shown by the records of the Trustee at the time such notice
is given. Such notice shall specify a date when such resignation shall take
effect, which shall be a Business Day not less than ninety (90) days after the
date such notice is mailed.
6.04. REMOVAL OF TRUSTEE. The Trustee may be removed, with or
without cause, by the affirmative vote of the Certificate Holders present or
represented at a meeting held in accordance with the requirements of Article
VIII.
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6.05. APPOINTMENT OF SUCCESSOR TRUSTEE. In the event of a vacancy in
the position of Trustee or if a Trustee has given notice of its intention to
resign, the Certificate Holders present or represented at a meeting held in
accordance with the requirements of Article VIII may appoint a successor
Trustee. Any Trustee shall be a bank having trust powers and having a capital,
surplus and undivided profits of at least $100,000,000. In the event that a
vacancy in the position of Trustee continues for sixty (60) days, a successor
Trustee may be appointed by any State or Federal District Court holding terms
in Omaha, Xxxxxxx County, Nebraska, upon the application of any Certificate
Holder, and in the event any such application is filed, such court may appoint
a temporary Trustee at any time after any such application is filed with it
which shall, pending the final appointment of a Trustee, have such powers and
duties as the court appointing such temporary Trustee shall provide in its
order of appointment, consistent with the provisions of this Indenture.
Immediately upon the appointment of any successor Trustee other than
such a temporary Trustee, all rights, titles, duties, powers and authority of
the succeeded Trustee hereunder shall be vested in and undertaken by the
successor Trustee which shall be entitled to receive from the Trustee which it
succeeds all of the Trust Estate held by it hereunder and all records and
files in connection therewith. No successor Trustee shall be obligated to
examine or seek alteration of any account of any preceding Trustee, nor shall
any successor Trustee be liable personally for failing to do so or for any act
or omission of any preceding Trustee. The preceding sentence shall not prevent
any successor Trustee or anyone else from taking any action otherwise
permissible in connection with any such account.
ARTICLE VII.
COMPENSATION OF THE TRUSTEE
7.01. COMPENSATION OF TRUSTEE. The Trustee shall receive compensation
for its services as Trustee hereunder as set forth in Schedule 3 attached
hereto. In the event of litigation involving the Trust, audits or inspection
of the records of the Trust pertaining to the transactions affecting the Trust
or any other unusual or extraordinary services rendered in connection with the
administration of the Trust, Trustee shall be entitled to receive reasonable
compensation for the services rendered.
ARTICLE VIII.
MEETINGS OF CERTIFICATE HOLDERS
8.01. PURPOSE OF MEETINGS. A meeting of the Certificate Holders may
be called at any time and from time to time pursuant to the provisions of this
Article to transact any matter that the Certificate Holders may be authorized
to transact.
8.02. NOTICE OF MEETINGS. Any such meeting of the Certificate Holders
may be called by the Trustee or by Certificate Holders owning not less than
fifteen percent (15%) in number of the Units represented by the then
outstanding Certificates. All such meetings shall be held at such time and at
such place in Omaha, Nebraska, as the notice of any such meeting may
designate. Written notice of every meeting of the Certificate Holders signed
by the Trustee or the Certificate Holders calling the meeting setting forth
the time and place of the meeting and in
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general terms the matters proposed to be acted upon at such meeting shall be
given in person or by mail not more than 60 nor less than 10 days before such
meeting is to be held to all of the Certificate Holders of record not more
than 60 days before the date of such mailing. If such notice is given to any
Certificate Holder by mail, it shall be directed to him at his last address as
shown by the records of the Trustee and shall be deemed duly given when so
addressed and deposited in the United States mail, postage prepaid. No matter
other than that stated in the notice shall be acted upon at any meeting.
8.03. METHOD OF VOTING. At any such meeting the presence in person or
by proxy of Certificate Holders holding a majority of the Units shall
constitute a quorum, and any matter shall be deemed to have been approved by
the Certificate Holders if it is approved by the vote of a majority in
interest of such Certificate Holders constituting a quorum, although less than
a majority of all of the Units. Provided, however, that the affirmative vote
by the Certificate Holders of at least 50% of all the Units outstanding shall
be required to:
(a) approve or authorize any sale of all or any part of the
Trust Estate; or
(b) terminate the Trust pursuant to Section 9.02(b); or
(c) approve any amendment to or affecting this Section 8.03.
Each Certificate Holder shall be entitled to one vote for each Unit owned by
him, and any Certificate Holder may vote in person or by duly executed written
proxy.
8.04. CONDUCT OF MEETINGS. The Trustee may make such reasonable
regulations as it may deem advisable for any meeting of the Certificate
Holders, for the appointment of proxies, and in regard to the appointment and
duties of inspectors of votes, the submission and examination of proxies,
Certificates and other evidence of the right to vote, the preparation and use
at the meeting of a list authenticated by or on behalf of the Trustee of the
Certificate Holders entitled to vote at the meeting and such other matters
concerning the conduct of the meeting as it shall deem advisable.
ARTICLE IX.
DURATION, REVOCATION AND TERMINATION OF TRUST
9.01. REVOCATION. The Trust may be revoked in whole or in part by the
Company, in its sole discretion, on or before June 23, 1982, by written notice
served upon the Trustee in the manner provided in Section 11.06. If not
revoked in accordance with the preceding sentence, the Trust, as it may have
been amended pursuant to Section 10.01, shall be irrevocable on and after June
24, 1982, subject to the termination provisions of Section 9.02 and to the
amendment provisions in Section 10.03.
9.02. TERMINATION. If not revoked in its entirety prior to June 24,
1982, in accordance with Section 9.01, the Trust shall terminate upon the
first to occur of the following events or times:
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(a) at such time as its net revenues for each of three
successive years are less than $1,000,000 per year;
(b) a vote in favor of termination by the Certificate
Holders present or represented at a meeting held in accordance with
the requirements of Article VIII; or
(c) the expiration of twenty-one years after the death of
the last survivor of the Issue in being on May 17, 1982 of any member
of the Board of Directors of Xxxxx Xxxxxx Sons', Inc. on May 17, 1982,
as those members are identified on Schedule 4 attached hereto.
9.03. DISPOSITION AND DISTRIBUTION OF PROPERTIES. For the purpose of
liquidating and winding up the affairs of the Trust at its termination, the
Trustee shall continue to act as such and exercise each power until its duties
have been fully performed and the Trust Estate finally distributed. Upon the
termination of the Trust, if after June 23, 1982, the Trustee shall sell for
cash in one or more sales all the properties other than cash then constituting
the Trust Estate. The Trustee shall as promptly as possible distribute the
proceeds of any such sales and any other cash in the Trust Estate according to
the respective interests and rights of the Certificate Holders, after paying,
satisfying and discharging all of the liabilities of the Trust, or, when
necessary, setting up reserves in such amounts as Trustee in its discretion
deems appropriate for contingent liabilities. In the event that any property
which the Trustee is required to sell is not sold by the Trustee within three
years after the termination of the Trust, the Trustee shall cause such
property to be sold at public auction to the highest cash bidder. Notice of
such sale by auction shall be mailed at least thirty days prior to such sale
to each Certificate Holder at his address as it appears upon the books of the
Trustee. The Trustee shall not be required to obtain approval of the
Certificate Holders prior to selling property pursuant to this Section. Upon
making final distribution to the Certificate Holders, the Trustee shall be
under no further liability except as provided in Sections 6.01(a) and (b). If
the Trust is revoked prior to June 24, 1982, the Trustee shall promptly convey
the Trust Estate to the Company.
ARTICLE X.
AMENDMENTS
10.01. TEMPORARY RESERVED POWER. The Company reserves the power to
alter, amend or modify the Trust in any manner, in its sole discretion, on or
before June 23, 1982, by executing an amendment document and delivering it to
the Trustee in the manner provided in Section 11.06. After June 23, 1982 the
Company shall have no power to alter, amend or modify the Trust in any manner.
10.02. PROHIBITED. After June 23, 1982, no amendment may be made to
any provision of the Indenture which would
(a) increase the power of the Trustee to engage in business
or investment activities; or
(b) alter the rights of the Certificate Holders vis-a-vis
each other.
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10.03. PERMITTED. After June 23, 1982, except as provided in Section
10.02, the provisions of the Indenture may be amended by a vote of the
Certificate Holders present or represented at a meeting held in accordance
with the requirements of Article VIII. Any amendment which enlarges the
responsibilities and/or liabilities of the Trustee shall only become effective
upon the express written approval of the Trustee.
ARTICLE XI.
MISCELLANEOUS
11.01. DIVESTITURE OF UNITS. Notwithstanding anything to the contrary
as set forth elsewhere in this Indenture, if at any time the Trust or the
Trustee is named a party in any judicial or administrative proceeding which
seeks the cancellation or forfeiture of any property in which the Trustee has
an interest because of the nationality, or any other status, of any one or
more of the Certificate Holders, the following procedures will be applicable:
(a) The Trustee will promptly give written notice ("Notice")
in the manner provided by Section 11.06 to each holder whose
nationality or other status is an issue in the proceeding ("Ineligible
Holder"). The Notice will contain a reasonable summary of such
controversy and will constitute a demand to each Ineligible Holder
that he dispose of his Units, to a party who would not be an
Ineligible Holder, within 30 days after the date of the Notice.
(b) If any Ineligible Holder fails to dispose of his Units
as required by the Notice, the Trustee shall have the preemptive right
to sell, in behalf of the Ineligible Holder the Units of such
Ineligible Holder on such terms and conditions as the Trustee deems
fair and reasonable under the circumstances, and the Trustee shall
deliver the proceeds of the sale, less any expenses of the sale, to
the Ineligible Holder who, following such sale, shall have no further
interest in the Trust or the Trust Estate.
11.02. INSPECTION OF TRUSTEE'S BOOKS. Each Certificate Holder and his
duly authorized agents, attorneys and auditors shall have the right during
reasonable business hours to examine, inspect and make audits of the Trust and
records of the Trustee in reference thereto.
11.03. TRUSTEE'S EMPLOYMENT OF EXPERTS. The Trustee may, but shall not
be required to, consult with counsel, who may be its own counsel, accountants,
geologists, engineers and other parties deemed by the Trustee to be qualified
as experts on the matters submitted to them, and the opinion of any such
parties on any matter submitted to them by the Trustee shall be full and
complete authorization and protection in respect of any action taken or
suffered by it hereunder in good faith and in accordance with the opinion of
any such party.
11.04. FILING OF THIS INDENTURE. Neither this Indenture nor any
executed copy hereof need be filed in any county in which any of the Trust
Estate is located, but the same may be filed for record in any county by the
Trustee. In order to avoid the necessity of filing this Indenture for record,
the Trustee agrees that for the purpose of vesting the record title in any
successor to the Trustee, the retiring Trustee will, upon appointment of any
successor Trustee, execute and deliver to such successor Trustee appropriate
assignments or conveyances.
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11.05. SEPARABILITY. If any provision of this Indenture or the
application thereof to any Person or circumstances shall be finally determined
by a court of proper jurisdiction to be illegal, invalid or unenforceable to
any extent, the remainder of this Indenture or the application of such
provision to Persons or circumstances other than those as to which it is held
illegal, invalid or unenforceable, shall not be affected thereby, and every
provision of this Indenture shall be valid and enforced to the fullest extent
permitted by law.
11.06. NOTICES. Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served upon the Trustee by
any Certificate Holder may be given or served by being deposited, postage
prepaid and by registered or certified mail, in a post office or letter box
addressed (until another address is designated by notice to the Certificate
Holders) to the Bank at 00xx xxx Xxxxxx Xxxxxxx, Xxxxx, Xxxxxxxx 00000. Any
notice or other communication by the Trustee to any Certificate Holder shall
be deemed to have been sufficiently given, for all purposes, when deposited,
postage prepaid, in a post office or letter box addressed to said holder at
his address as shown on the records of the Trustee.
11.07. COUNTERPARTS. This Indenture may be executed in a number of
counterparts, each of which shall constitute an original, but such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the Company has caused this Indenture to be
executed by its duly authorized Vice President and its seal to be hereto
affixed and attested by its duly authorized Secretary or Assistant Secretary
and the Trustee has caused this Indenture to be executed by its duly
authorized Vice President and its seal to be hereto affixed and attested by
its duly authorized Secretary or Assistant Secretary, this 23rd day of June,
1982, this instrument being executed in a number of copies, each of which
shall be an original, but all of which shall constitute only one Indenture,
at Omaha, Xxxxxxx County, Nebraska.
ATTEST: XXXXX XXXXXX SONS', INC.
/s/ X.X. Xxxxxxxxxx By /s/ R.E. Julian
---------------------------- --------------------------
Secretary Vice President
TRUSTOR
ATTEST: OMAHA NATIONAL BANK
/s/ X.X. Xxxxxxx By /s/ Xxxxxx X. Xxxxx
---------------------------- --------------------------
Vice President
TRUSTEE
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