EXHIBIT 4A
[FORM OF INDENTURE]
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WISCONSIN PUBLIC SERVICE CORPORATION
AS ISSUER
TO
FIRSTAR BANK MILWAUKEE, N.A., NATIONAL ASSOCIATION
AS TRUSTEE
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INDENTURE
SENIOR DEBT SECURITIES
DATED AS OF DECEMBER 1, 1998
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TABLE OF CONTENTS
PAGE
RECITALS OF THE COMPANY. . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION . . . . . . . . . . . . . . . . . . . 2
SECTION 1.01. Definitions. . . . . . . . . . . . . . . . . . . . . . 2
(a) "ACT,". . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(b) "AFFILIATE" . . . . . . . . . . . . . . . . . . . . . . . . 2
(c) "AUTHENTICATING AGENT". . . . . . . . . . . . . . . . . . . 2
(d) "BANKRUPTCY LAW". . . . . . . . . . . . . . . . . . . . . . 2
(e) "BOARD OF DIRECTORS". . . . . . . . . . . . . . . . . . . . 3
(f) "BOARD RESOLUTION". . . . . . . . . . . . . . . . . . . . . 3
(g) "BONDHOLDER". . . . . . . . . . . . . . . . . . . . . . . . 3
(h) "BUSINESS DAY," . . . . . . . . . . . . . . . . . . . . . . 3
(i) "CAPITAL LEASE" . . . . . . . . . . . . . . . . . . . . . . 3
(j) "CAPITALIZATION". . . . . . . . . . . . . . . . . . . . . . 3
(k) "COLLATERAL BONDS," . . . . . . . . . . . . . . . . . . . . 3
(l) "COMMISSION". . . . . . . . . . . . . . . . . . . . . . . . 3
(m) "COMPANY" . . . . . . . . . . . . . . . . . . . . . . . . . 3
(n) "COMPANY REQUEST" or "COMPANY ORDER". . . . . . . . . . . . 4
(o) "CORPORATE TRUST OFFICE". . . . . . . . . . . . . . . . . . 4
(p) "COVENANT DEFEASANCE" . . . . . . . . . . . . . . . . . . . 4
(q) "CUSTODIAN" . . . . . . . . . . . . . . . . . . . . . . . . 4
(r) "DEBT". . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(s) "DEFAULT" . . . . . . . . . . . . . . . . . . . . . . . . . 4
(t) "DEFAULTED INTEREST". . . . . . . . . . . . . . . . . . . . 4
(u) "DEFEASANCE". . . . . . . . . . . . . . . . . . . . . . . . 4
(v) "DEPOSITARY". . . . . . . . . . . . . . . . . . . . . . . . 4
(w) "DOLLARS" and "$" . . . . . . . . . . . . . . . . . . . . . 4
(x) "EVENT OF DEFAULT". . . . . . . . . . . . . . . . . . . . . 4
(y) "EXCHANGE ACT". . . . . . . . . . . . . . . . . . . . . . . 4
(z) "EXPERT". . . . . . . . . . . . . . . . . . . . . . . . . . 5
(aa) "FIRST MORTGAGE BONDS". . . . . . . . . . . . . . . . . . . 5
(bb) "FIRST MORTGAGE INDENTURE". . . . . . . . . . . . . . . . . 5
(cc) "GAAP". . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(dd) "GLOBAL SECURITY" . . . . . . . . . . . . . . . . . . . . . 5
(ee) "HOLDER" or "SECURITY HOLDER" . . . . . . . . . . . . . . . 5
(ff) "HYBRID PREFERRED SECURITIES" . . . . . . . . . . . . . . . 5
(gg) "HYBRID PREFERRED SECURITIES SUBSIDIARY". . . . . . . . . . 5
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(hh) "INDENTURE" . . . . . . . . . . . . . . . . . . . . . . . . 6
(ii) "INITIAL SECURITIES". . . . . . . . . . . . . . . . . . . . 6
(jj) "INTEREST," . . . . . . . . . . . . . . . . . . . . . . . . 6
(kk) "INTEREST PAYMENT DATE,". . . . . . . . . . . . . . . . . . 6
(ll) "JUNIOR SUBORDINATED INDEBTEDNESS". . . . . . . . . . . . . 6
(mm) "LIEN," . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(nn) "MATURITY," . . . . . . . . . . . . . . . . . . . . . . . . 6
(oo) "MORTGAGE," . . . . . . . . . . . . . . . . . . . . . . . . 6
(pp) "MORTGAGE TRUSTEE," . . . . . . . . . . . . . . . . . . . . 6
(qq) "NET TANGIBLE ASSETS" . . . . . . . . . . . . . . . . . . . 6
(rr) "OFFICER" . . . . . . . . . . . . . . . . . . . . . . . . . 7
(ss) "OFFICER'S CERTIFICATE" . . . . . . . . . . . . . . . . . . 7
(tt) "OPERATING PROPERTY". . . . . . . . . . . . . . . . . . . . 7
(uu) "OPINION OF COUNSEL". . . . . . . . . . . . . . . . . . . . 7
(vv) "ORIGINAL ISSUE DISCOUNT SECURITY". . . . . . . . . . . . . 7
(ww) "OUTSTANDING,". . . . . . . . . . . . . . . . . . . . . . . 7
(xx) "PAYING AGENT". . . . . . . . . . . . . . . . . . . . . . . 8
(yy) "PERSON". . . . . . . . . . . . . . . . . . . . . . . . . . 8
(zz) "PLACE OF PAYMENT," . . . . . . . . . . . . . . . . . . . . 8
(aaa) "REDEMPTION DATE,". . . . . . . . . . . . . . . . . . . . . 8
(bbb) "REDEMPTION PRICE," . . . . . . . . . . . . . . . . . . . . 8
(ccc) "REGULAR RECORD DATE" . . . . . . . . . . . . . . . . . . . 8
(ddd) "RELATED SERIES OF COLLATERAL BONDS". . . . . . . . . . . . 8
(eee) "RELATED SERIES OF SECURITIES". . . . . . . . . . . . . . . 9
(fff) "RELATED SERIES OF SUBSTITUTED COLLATERAL BONDS," . . . . . 9
(ggg) "RELEASE DATE," . . . . . . . . . . . . . . . . . . . . . . 9
(hhh) "RESPONSIBLE OFFICER,". . . . . . . . . . . . . . . . . . . 9
(iii) "SALE AND LEASE-BACK TRANSACTION" . . . . . . . . . . . . . 9
(jjj) "SECURITIES". . . . . . . . . . . . . . . . . . . . . . . . 9
(kkk) "SECURITY REGISTER" and "SECURITY REGISTRAR". . . . . . . . 9
(lll) "SPECIAL RECORD DATE" . . . . . . . . . . . . . . . . . . . 9
(mmm) "STATED MATURITY,". . . . . . . . . . . . . . . . . . . . .10
(nnn) "SUBSIDIARY". . . . . . . . . . . . . . . . . . . . . . . .10
(ooo) "SUBSTITUTED COLLATERAL BONDS," . . . . . . . . . . . . . .10
(ppp) "SUBSTITUTED MORTGAGE INDENTURE". . . . . . . . . . . . . .10
(qqq) "TRUST INDENTURE ACT" . . . . . . . . . . . . . . . . . . .10
(rrr) "TRUSTEE" . . . . . . . . . . . . . . . . . . . . . . . . .10
(sss) "U.S. GOVERNMENT OBLIGATIONS" . . . . . . . . . . . . . . .10
(ttt) "VALUE" . . . . . . . . . . . . . . . . . . . . . . . . . .11
(uuu) "VICE PRESIDENT," . . . . . . . . . . . . . . . . . . . . .11
SECTION 1.02. Compliance Certificates and Opinions.. . . . . . . . .11
SECTION 1.03. Form of Documents Delivered to Trustee.. . . . . . . .12
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SECTION 1.04. Acts of Holders. . . . . . . . . . . . . . . . . . . .12
SECTION 1.05. Notices, Etc., to Trustee and Company. . . . . . . . .13
SECTION 1.06. Notice to Holders; Waiver. . . . . . . . . . . . . . .13
SECTION 1.07. Conflict with Trust Indenture Act. . . . . . . . . . .14
SECTION 1.08. Effect of Headings and Table of Contents.. . . . . . .14
SECTION 1.09. Successors and Assigns.. . . . . . . . . . . . . . . .14
SECTION 1.10. Separability Clause. . . . . . . . . . . . . . . . . .14
SECTION 1.11. Benefits of Indenture. . . . . . . . . . . . . . . . .15
SECTION 1.12. Governing Law. . . . . . . . . . . . . . . . . . . . .15
SECTION 1.13. Legal Holidays.. . . . . . . . . . . . . . . . . . . .15
SECTION 1.14. No Recourse Against Others.. . . . . . . . . . . . . .15
ARTICLE II SECURITY FORMS . . . . . . . . . . . . . . . . . . . . . . .16
SECTION 2.01. Forms Generally. . . . . . . . . . . . . . . . . . . .16
SECTION 2.02. Form of Face of Security.. . . . . . . . . . . . . . .16
SECTION 2.03. Form of Reverse of Security. . . . . . . . . . . . . .19
SECTION 2.04. Form of Trustee's Certificate of Authentication. . . .25
SECTION 2.05. Securities Issuable in the Form of a Global Security..25
SECTION 2.06. CUSIP Number.. . . . . . . . . . . . . . . . . . . . .27
SECTION 2.07. Payment of Securities. . . . . . . . . . . . . . . . .27
ARTICLE III THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . .29
SECTION 3.01. Amount Unlimited; Issuable in Series.. . . . . . . . .29
SECTION 3.02. Denominations. . . . . . . . . . . . . . . . . . . . .31
SECTION 3.03. Execution, Authentication, Delivery and Dating.. . . .31
SECTION 3.04. Temporary Securities.. . . . . . . . . . . . . . . . .33
SECTION 3.05. Registration, Registration of Transfer and Exchange. .34
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities.. . .35
SECTION 3.07. Payment of Interest; Interest Rights Preserved.. . . .36
SECTION 3.08. Persons Deemed Owners. . . . . . . . . . . . . . . . .37
SECTION 3.09. Cancellation.. . . . . . . . . . . . . . . . . . . . .38
SECTION 3.10. Computation of Interest. . . . . . . . . . . . . . . .38
ARTICLE IV COLLATERAL BONDS; PLEDGED
SUBSTITUTED COLLATERAL BONDS . . . . . . . . . . . . . . . .39
SECTION 4.01. Delivery and Acceptance of Collateral Bonds. . . . . .39
SECTION 4.02. Terms of Collateral Bonds. . . . . . . . . . . . . . .39
SECTION 4.03. Collateral Bonds Held by the Trustee.. . . . . . . . .39
SECTION 4.04. No Transfer of Collateral Bonds; Exception.. . . . . .39
SECTION 4.05. Delivery to the Company of All Collateral Bonds. . . .40
SECTION 4.06. Further Assurances.. . . . . . . . . . . . . . . . . .40
SECTION 4.07. Exchange and Surrender of Collateral Bonds.. . . . . .40
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SECTION 4.08. Collateral Bonds as Security for Securities;
Application of Payment on Collateral Bonds. . . . . .41
SECTION 4.09. Substituted Collateral Bonds.. . . . . . . . . . . . .42
SECTION 4.10. Fair Value Certificate . . . . . . . . . . . . . . . .43
ARTICLE V SATISFACTION AND DISCHARGE . . . . . . . . . . . . . . . . .45
SECTION 5.01. Satisfaction and Discharge of Indenture. . . . . . . .45
SECTION 5.02. Application of Trust Money.. . . . . . . . . . . . . .46
ARTICLE VI REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . .47
SECTION 6.01. Events of Default. . . . . . . . . . . . . . . . . . .47
SECTION 6.02. Acceleration of Maturity and Rescission. . . . . . . .48
SECTION 6.03. Collection of Indebtedness and Suits
for Enforcement by Trustee.. . . . . . . . . . . . . .49
SECTION 6.04. Trustee May File Proofs of Claim.. . . . . . . . . . .50
SECTION 6.05. Trustee May Enforce Claims Without Possession of
Securities.. . . . . . . . . . . . . . . . . . . . . .51
SECTION 6.06. Application of Money Collected.. . . . . . . . . . . .51
SECTION 6.07. Limitation on Suits. . . . . . . . . . . . . . . . . .52
SECTION 6.08. Unconditional Right of Holders to Receive Principal,
Premium and Interest.. . . . . . . . . . . . . . . . .52
SECTION 6.09. Restoration of Rights and Remedies.. . . . . . . . . .52
SECTION 6.10. Rights and Remedies Cumulative.. . . . . . . . . . . .53
SECTION 6.11. Delay or Omission Not Waiver.. . . . . . . . . . . . .53
SECTION 6.12. Control by Holders.. . . . . . . . . . . . . . . . . .53
SECTION 6.13. Waiver of Past Defaults. . . . . . . . . . . . . . . .53
SECTION 6.14. Undertaking for Costs. . . . . . . . . . . . . . . . .54
SECTION 6.15. Defaults Under First Mortgage Indenture
or Substituted Mortgage Indenture. . . . . . . . . . .54
ARTICLE VII THE TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . .55
SECTION 7.01. Certain Duties and Responsibilities of the Trustee.. .55
SECTION 7.02. Notice of Defaults.. . . . . . . . . . . . . . . . . .55
SECTION 7.03. Certain Rights of Trustee. . . . . . . . . . . . . . .55
SECTION 7.04. Not Responsible for Recitals or Issuance of
Securities.. . . . . . . . . . . . . . . . . . . . . .56
SECTION 7.05. May Hold Securities. . . . . . . . . . . . . . . . . .56
SECTION 7.06. Money Held in Trust. . . . . . . . . . . . . . . . . .57
SECTION 7.07. Compensation and Reimbursement.. . . . . . . . . . . .57
SECTION 7.08. Disqualification; Conflicting Interests. . . . . . . .57
SECTION 7.09. Corporate Trustee Required; Eligibility. . . . . . . .58
SECTION 7.10. Resignation and Removal; Appointment of Successor. . .58
SECTION 7.11. Acceptance of Appointment by Successor.. . . . . . . .59
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SECTION 7.12. Merger, Conversion, Consolidation or Succession to
Business.. . . . . . . . . . . . . . . . . . . . . . .61
SECTION 7.13. Preferential Collection of Claims Against Company. . .61
SECTION 7.14. Appointment of Authenticating Agent. . . . . . . . . .61
ARTICLE VIII HOLDERS' LISTS AND REPORTS BY TRUSTEE
AND COMPANY. . . . . . . . . . . . . . . . . . . . . . . . .63
SECTION 8.01. Company to Furnish Trustee Names and
Addresses of Holders.. . . . . . . . . . . . . . . . .63
SECTION 8.02. Preservation of Information; Communications
to Holders.. . . . . . . . . . . . . . . . . . . . . .63
SECTION 8.03. Reports by Trustee.. . . . . . . . . . . . . . . . . .64
SECTION 8.04. Reports by Company.. . . . . . . . . . . . . . . . . .65
ARTICLE IX CONSOLIDATION, MERGER, LEASE, SALE OR TRANSFER . . . . . . .66
SECTION 9.01. Then Company May Merge, Etc. . . . . . . . . . . . . .66
SECTION 9.02. Opinion of Counsel.. . . . . . . . . . . . . . . . . .66
SECTION 9.03. Successor Corporation Substituted. . . . . . . . . . .66
ARTICLE X SUPPLEMENTAL INDENTURES. . . . . . . . . . . . . . . . . . .68
SECTION 10.01. Supplemental Indentures Without Consent of Holders.. .68
SECTION 10.02. Supplemental Indentures with Consent of Holders. . . .69
SECTION 10.03. Execution of Supplemental Indentures.. . . . . . . . .70
SECTION 10.04. Effect of Supplemental Indentures. . . . . . . . . . .70
SECTION 10.05. Conformity with Trust Indenture Act. . . . . . . . . .70
SECTION 10.06. Reference in Securities to Supplemental Indentures.. .70
ARTICLE XI COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . .72
SECTION 11.01. Payments of Principal and Interest.. . . . . . . . . .72
SECTION 11.02. Maintenance of Office or Agency. . . . . . . . . . . .72
SECTION 11.03. Corporate Existence. . . . . . . . . . . . . . . . . .72
SECTION 11.04. Payment of Taxes and Other Claims. . . . . . . . . . .72
SECTION 11.05. Maintenance of Properties. . . . . . . . . . . . . . .73
SECTION 11.06. Opinions of Counsel. . . . . . . . . . . . . . . . . .73
SECTION 11.07. Compliance Certificates. . . . . . . . . . . . . . . .74
SECTION 11.08. Waiver of Stay or Extension. . . . . . . . . . . . . .74
SECTION 11.09. Money for Securities Payments to Be Held in Trust. . .74
SECTION 11.10. Restrictions on Liens. . . . . . . . . . . . . . . . .76
SECTION 11.11. Restrictions on Sale and Lease-Back Transactions.. . .78
ARTICLE XII REDEMPTION OF SECURITIES . . . . . . . . . . . . . . . . . .79
SECTION 12.01. Applicability of Article.. . . . . . . . . . . . . . .79
SECTION 12.02. Election to Redeem; Notice to Trustee. . . . . . . . .79
SECTION 12.03. Election by Trustee of Securities to Be Redeemed.. . .79
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SECTION 12.04. Notice of Redemption.. . . . . . . . . . . . . . . . .80
SECTION 12.05. Deposit of Redemption Price. . . . . . . . . . . . . .80
SECTION 12.06. Securities Payable on Redemption Date. . . . . . . . .81
SECTION 12.07. Securities Redeemed in Part. . . . . . . . . . . . . .81
ARTICLE XIII SINKING FUNDS. . . . . . . . . . . . . . . . . . . . . . . .82
SECTION 13.01. Applicability of Article.. . . . . . . . . . . . . . .82
SECTION 13.02. Satisfaction of Sinking Fund Payments with
Securities.. . . . . . . . . . . . . . . . . . . . . .82
SECTION 13.03. Redemption of Securities for Sinking Fund. . . . . . .82
ARTICLE XIV DEFEASANCE AND COVENANT DEFEASANCE . . . . . . . . . . . . .83
SECTION 14.01. Applicability of Article; Company's Option
to Effect Defeasance or Covenant Defeasance. . . . . .83
SECTION 14.02. Defeasance and Discharge.. . . . . . . . . . . . . . .83
SECTION 14.03. Covenant Defeasance. . . . . . . . . . . . . . . . . .83
SECTION 14.04. Conditions to Defeasance or Covenant Defeasance. . . .84
SECTION 14.05. Deposited Money and Government Obligations
To Be Held In Trust. . . . . . . . . . . . . . . . . .85
ARTICLE XV MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . .87
SECTION 15.01. Miscellaneous. . . . . . . . . . . . . . . . . . . . .00
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XXXXXXXXX PUBLIC SERVICE CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of December 1, 1998
Trust Indenture
Act Section Indenture Section
Section 310 (a) (1) . . . . . . . . . . . . . . . 7.09
(a) (2) . . . . . . . . . . . . . . . 7.09
(a) (3) . . . . . . . . . . . . . . . Not Applicable
(a) (4) . . . . . . . . . . . . . . . Not Applicable
(a) (5). . . . . . . . . . . . . . . 7.09
(b). . . . . . . . . . . . . . . . . 7.08, 7.10
Section 311 (a). . . . . . . . . . . . . . . . . 7.13
(b). . . . . . . . . . . . . . . . . 7.13
Section 312 (a). . . . . . . . . . . . . . . . . 8.01(a), 8.02(a)
(b). . . . . . . . . . . . . . . . . 8.02(b)
(c). . . . . . . . . . . . . . . . . 8.02(c)
Section 313 (a). . . . . . . . . . . . . . . . . 8.03(a)
(b). . . . . . . . . . . . . . . . . 8.03(b)
(c). . . . . . . . . . . . . . . . . 8.03(a), 8.03(b)
(d). . . . . . . . . . . . . . . . . 8.03(b)
Section 314 (a). . . . . . . . . . . . . . . . . 8.04
(b). . . . . . . . . . . . . . . . . Not Applicable
(c) (1). . . . . . . . . . . . . . . 1.02
(c) (2). . . . . . . . . . . . . . . 1.02
(c) (3). . . . . . . . . . . . . . . Not Applicable
(d). . . . . . . . . . . . . . . . . 4.10
(e). . . . . . . . . . . . . . . . . 1.02
Section 315 (a). . . . . . . . . . . . . . . . . 7.01(a)
(b). . . . . . . . . . . . . . . . . 7.02
(c). . . . . . . . . . . . . . . . . 7.01(b)
(d). . . . . . . . . . . . . . . . . 7.01(c)
(d) (1). . . . . . . . . . . . . . . 7.01(a), 7.01(c)
(d) (2). . . . . . . . . . . . . . . 7.01(c)
(d) (3). . . . . . . . . . . . . . . 7.01(c)
(e). . . . . . . . . . . . . . . . . 6.14
Section 316 (a) (1) (A). . . . . . . . . . . . . 6.12
(a) (1) (B). . . . . . . . . . . . . 6.02, 6.13
(a) (2). . . . . . . . . . . . . . . Not Applicable
(b). . . . . . . . . . . . . . . . . 6.08
Section 317 (a) (1). . . . . . . . . . . . . . . 6.03
(a) (2). . . . . . . . . . . . . . . 6.04
(b). . . . . . . . . . . . . . . . . 11.09
Section 318 (a). . . . . . . . . . . . . . . . . 1.07
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NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of this Indenture.
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INDENTURE, dated as of December 1, 1998, between WISCONSIN PUBLIC
SERVICE CORPORATION, a corporation duly organized and existing under the laws of
the State of Wisconsin (herein called the "COMPANY"), having its principal
office at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx Xxx, Xxxxxxxxx 00000 and Firstar Bank
Milwaukee, N.A., National Association, a national banking association organized
and existing under and by virtue of the laws of the United States, as Trustee
(herein called the "TRUSTEE").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its senior
debentures, notes or other evidences of indebtedness (herein called the
"SECURITIES"), to be issued in one or more series as in this Indenture provided.
Subject to the provisions of Section 4.08 hereof, the Company may
issue First Mortgage Bonds (as hereinafter defined) and issue and deliver
Collateral Bonds to the Trustee to hold in trust for the benefit of the
respective Holders (as hereinafter defined) from time to time of the Related
Series of Securities. Any payment by the Company of principal of, premium, if
any, and interest on, a series of First Mortgage Bonds will be applied by the
Trustee to satisfy the Company's obligations with respect to the principal of,
premium, if any, and interest on, the Related Series of Securities. Pursuant to
the terms and provisions hereof, the Company may issue and deliver to the
Trustee additional First Mortgage Bonds for such purpose or require the Trustee
to deliver to the Company for cancellation any and all Collateral Bonds held by
the Trustee.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, has been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(4) the word "INCLUDING" (and with correlative meaning "INCLUDE")
means including, without limiting the generality of, any description
preceding such term; and
(5) the words "HEREIN," "HEREOF" and "HEREUNDER" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Seven, are defined in that
Article.
(a) "ACT,"when used with respect to any Holder, has the meaning
specified in Section 1.04.
(b) "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.
(c) "AUTHENTICATING AGENT" means any Person authorized by the Trustee
to act on behalf of the Trustee to authenticate Securities.
(d) "BANKRUPTCY LAW" means Title 11, U.S. Code or any similar federal
or state law for the relief of debtors.
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(e) "BOARD OF DIRECTORS" means the board of directors of the Company;
provided, however, that when the context refers to actions or resolutions of the
Board of Directors, then the term "Board of Directors" shall also mean any duly
authorized committee of the Board of Directors of the Company or Officer
authorized to act with respect to any particular matter to exercise the power of
the Board of Directors of the Company.
(f) "BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
(g) "BONDHOLDER" shall mean the Person in whose name a First Mortgage
Bond is registered in the bond register therefor.
(h) "BUSINESS DAY," when used with respect to any Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment are authorized or obligated
by law or regulation to close.
(i) "CAPITAL LEASE" shall mean any lease which has been or would be
capitalized on the books of the lessee in accordance with GAAP.
(j) "CAPITALIZATION" shall mean the total of all the following items
appearing on, or included in, the consolidated balance sheet of the Company:
(i) liabilities for indebtedness maturing more than twelve (12) months from the
date of determination; and (ii) common stock, preferred stock, Hybrid Preferred
Securities, premium on capital stock, capital surplus, capital in excess of par
value, and retained earnings (however the foregoing may be designated), less, to
the extent not otherwise deducted, the cost of shares of capital stock of the
Company held in its treasury. Subject to the foregoing, Capitalization shall be
determined in accordance with generally accepted accounting principles and
practices applicable to the type of business in which the Company is engaged and
that are approved by independent accountants regularly retained by the Company,
and may be determined as of a date nor more than sixty (60) days prior to the
happening of an event for which such determination is being made.
(k) "COLLATERAL BONDS," shall mean any First Mortgage Bonds issued by
the Company under the First Mortgage Indenture and issued and delivered to the
Trustee pursuant to Section 4.01.
(l) "COMMISSION" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument 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.
(m) "COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become such
pursuant to
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the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
(n) "COMPANY REQUEST" or "COMPANY ORDER" means a written request or
order signed in the name of the Company by its Chairman of the Board, its
President or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Controller, an Assistant Controller, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
(o) "CORPORATE TRUST OFFICE" means the principal office of the
Trustee at which at any time its corporate trust business shall be administered,
which office at the date hereof is located at 0000 Xxxxx XxxxxXxxxxx Xxxxx,
Xxxxx 000, P.O. Box 2077, Milwaukee, Wisconsin 53201-2077, Attention: Corporate
Trust Department, or such other address as the Trustee may designate from time
to time by notice to the Holders and the Company, or the principal corporate
trust office of any successor Trustee (or such other address as a successor
Trustee may designate from time to time by notice to the Holders and the
Company).
(p) "COVENANT DEFEASANCE" has the meaning specified in Section 14.03.
(q) "CUSTODIAN" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
(r) "DEBT" means any outstanding debt for money borrowed evidenced by
notes, debentures, bonds or other securities or guarantees of any thereof.
(s) "DEFAULT" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
(t) "DEFAULTED INTEREST" has the meaning specified in Section 3.07.
(u) "DEFEASANCE" has the meaning specified in Section 14.02.
(v) "DEPOSITARY" shall mean, unless otherwise specified pursuant to
Section 3.01 hereof, The Depository Trust Company, New York, New York, or any
successor thereto registered or qualified as a clearing agency under the
Securities Exchange Act of 1934, or other applicable statute or regulation.
(w) "DOLLARS" and "$" means lawful money of the United States of
America.
(x) "EVENT OF DEFAULT" has the meaning specified in Section 6.01.
(y) "EXCHANGE ACT" means the Securities and Exchange Act of 1934, as
amended from time to time, and the rules and regulations promulgated thereunder.
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(z) "EXPERT" shall mean any officer of the Company familiar with
the terms of the First Mortgage Indenture and this Indenture, any law firm,
any investment banking firm or any other Person satisfactory in the
reasonable judgment of the Trustee.
(aa) "FIRST MORTGAGE BONDS" shall mean all First Mortgage Bonds
issued by the Company and outstanding under the First Mortgage Indenture or
the Substituted Mortgage Indenture, including in all events any Collateral
Bonds or Substituted Collateral Bonds issued and delivered to and held by the
Trustee.
(bb) "FIRST MORTGAGE INDENTURE" shall mean the First Mortgage and
Deed of Trust dated January 1, 1941, to First Wisconsin Trust Company
(succeeded by Firstar Bank Milwaukee, N.A., National Association), Milwaukee,
Wisconsin, as supplemented and amended by the supplemental indentures thereto.
(cc) "GAAP" shall mean generally accepted accounting principles in
the United States of America as in effect on the date hereof, applied on a
basis consistent with those used in the preparation of any financial
statements referred to herein, unless otherwise stated herein.
(dd) "GLOBAL SECURITY" shall mean a Security that, pursuant to
Sections 3.01 and 3.03 hereof, is issued to evidence Securities, that is
delivered to the Depositary or pursuant to the instructions of the Depositary
and that shall be registered in the name of the Depositary or its nominee.
(ee) "HOLDER" or "SECURITY HOLDER" means a Person in whose name a
Security is registered in the Security Register.
(ff) "HYBRID PREFERRED SECURITIES" shall mean any preferred
securities issued by a Hybrid Preferred Securities Subsidiary, where such
preferred securities have the following characteristics:
(i) such Hybrid Preferred Securities Subsidiary lends substantially
all of the proceeds from the issuance of such preferred securities to the
Company in exchange for Junior Subordinated Indebtedness issued by the
Company;
(ii) such preferred securities contain terms providing for the
deferral of interest payments corresponding to provisions providing for the
deferral of interest payments on the Junior Subordinated Indebtedness; and
(iii) the Company makes period interest payments on the Junior
Subordinated Indebtedness, which interest payments are in turn used by the
Hybrid Preferred Securities Subsidiary to make corresponding payments to
the holders of the preferred securities.
(gg) "HYBRID PREFERRED SECURITIES SUBSIDIARY" shall mean any business
trust (or similar entity) (i) all of the common equity interest of which is
owned (either directly or indirectly through one or more wholly-owned
Subsidiaries of the Company or any
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Consolidated Subsidiary of the Company) at all times by the Company, (ii)
that has been formed for the purpose of issuing Hybrid Preferred Securities
and (iii) substantially all of the assets of which consist at all times
solely of Junior Subordinated Indebtedness issued by the Company and payments
made from time to time on such Junior Subordinated Indebtedness.
(hh) "INDENTURE" means this instrument as originally executed or
as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of particular series of
Securities established as contemplated by Section 3.01.
(ii) "INITIAL SECURITIES" shall mean Securities in an aggregate
principal amount of $________ authenticated and delivered upon the execution
of this Indenture.
(jj) "INTEREST," when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity,
means interest payable after Maturity.
(kk) "INTEREST PAYMENT DATE," when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
(ll) "JUNIOR SUBORDINATED INDEBTEDNESS" shall mean any unsecured
Debt of the Company (i) issued in exchange for the proceeds of Hybrid
Preferred Securities and (ii) subordinated to the rights of the Holders
hereunder.
(mm) "LIEN," means any lien (statutory or other), mortgage,
pledge, hypothecation, assignment, deposit arrangement, encumbrance or
preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever (including, without limitation, the interest
of a vendor or lessor under any conditional sale, capitalized lease or other
title retention agreement).
(nn) "MATURITY," when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
(oo) "MORTGAGE," shall mean and include any mortgage, pledge, lien
or security interest.
(pp) "MORTGAGE TRUSTEE," shall mean the Person serving as trustee
at the time under the First Mortgage Indenture.
(qq) "NET TANGIBLE ASSETS" shall mean the amount shown as total
assets on the consolidated balance sheet of the Company, less the following:
(i) intangible assets including, but without limitation, such items as
goodwill, trademarks, trade names, patents, and unamortized debt discount and
expense and (ii) appropriate adjustments, if any, on account of minority
interests. Net Tangible Assets shall be determined in accordance with
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generally accepted accounting principles and practices applicable to the type of
business in which the Company is engaged and that are approved by the
independent accountants regularly retained by the Company, and may be determined
as of a date not more than sixty (60) days prior to the happening of the event
for which such determination is being made.
(rr) "OFFICER" means the Chairman of the Board, the Vice-Chairman
of the Board, the President, any Vice President, the Treasurer, any Assistant
Treasurer, the Controller, the Secretary or any Assistant Secretary of the
Company.
(ss) "OFFICER'S CERTIFICATE" means a certificate signed by an
Officer and delivered to the Trustee.
(tt) "OPERATING PROPERTY" shall mean (i) any interest in real
property owned by the Company and (ii) any asset owned by the Company that is
depreciable in accordance with GAAP, excluding, in either case, any interest
of the Company as lessee under a Capital Lease (except for a lease that
results from a Sale and Lease-Back Transaction).
(uu) "OPINION OF COUNSEL" means a written opinion of counsel, who
may be an employee of or counsel for the Company, and who shall be reasonably
acceptable to the Trustee.
(vv) "ORIGINAL ISSUE DISCOUNT SECURITY" means any Security, which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 6.02.
(ww) "OUTSTANDING," when used with respect to Securities or
Securities of any series, means, as of the date of determination, all such
Securities theretofore authenticated and delivered under this Indenture,
except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption
money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made;
(iii) Securities which have been paid pursuant to Section 3.06 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company; and
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(iv) Securities which have been defeased pursuant to Section 14.02;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (a) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be that portion of the principal amount
thereof that could be declared to be due and payable upon the occurrence of an
Event of Default and the continuation thereof pursuant to the terms of such
Original Issue Discount Security as of the date of such determination and (b)
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee knows to
be so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledge establishes
to the satisfaction of the Trustee the pledge's right so to act with respect to
such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor.
(xx) "PAYING AGENT" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any Securities on
behalf of the Company. The Company may act as Paying Agent with respect to
any Securities issued hereunder.
(yy) "PERSON" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
(zz) "PLACE OF PAYMENT," when used with respect to the Securities
of any series, means the place or places where the principal of (and premium,
if any) and interest on the Securities of that series are payable as
specified as contemplated by Section 3.01.
(aaa) "REDEMPTION DATE," when used with respect to any Security
of any series to be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture.
(bbb) "REDEMPTION PRICE," when used with respect to any Security
of any series to be redeemed, means the price at which it is to be redeemed
pursuant to this Indenture.
(ccc) "REGULAR RECORD DATE" for the interest payable on any
Interest Payment Date on the Securities of any series means the date specified
for that purpose as contemplated by Section 3.01.
(ddd) "RELATED SERIES OF COLLATERAL BONDS" shall mean, when used
in reference to a series of Securities, the series of Collateral Bonds having
the same stated rate or rates of interest (or interest calculated in the same
manner), Interest Payment Dates, stated maturity date and redemption provisions,
and in the same aggregate principal
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amount, delivered to the Trustee pursuant to Section 4.01 in connection with the
initial authentication and issuance of such Securities pursuant to Section 3.03.
(eee) "RELATED SERIES OF SECURITIES" shall mean, when used in
reference to a series of Collateral Bonds or Substituted Collateral Bonds, the
series of Securities in respect of which such series of Collateral Bonds or
Substituted Collateral Bonds was delivered to the Trustee pursuant to Section
4.01 or 4.09 hereof upon the initial issuance and authentication of such
series of Securities pursuant to Section 3.03 hereof.
(fff) "RELATED SERIES OF SUBSTITUTED COLLATERAL BONDS" shall mean,
when used in reference to a series of Securities, the series of Substituted
Collateral Bonds, having the same stated rate or rates of interest (or
interest calculated in the same manner), Interest Payment Dates, stated
maturity date and redemption provisions, and in the same aggregate principal
amount, delivered to the Trustee pursuant to Section 4.09.
(ggg) "RELEASE DATE" shall mean the date as of which all First
Mortgage Bonds, other than Collateral Bonds, have been retired through
payment, redemption, or otherwise (including those First Mortgage Bonds the
payment for which has been provided for in accordance with the First Mortgage
Indenture) at, before or after the maturity thereof, provided that no Default
or Event of Default has occurred and is continuing.
(hhh) "RESPONSIBLE OFFICER," when used with respect to the Trustee,
means any vice president, any assistant vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any senior trust officer, any trust officer or assistant
trust officer, the controller or any assistant controller or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of his knowledge of and familiarity with the
particular subject.
(iii) "SALE AND LEASE-BACK TRANSACTION" shall mean any arrangement
with any Person providing for the leasing to the Company of any Operating
Property (except for leases for a term, including any renewal thereof, of not
more than forty-eight (48) months), which Operating Property has been or is
to be sold or transferred by the Company to such Person; PROVIDED, HOWEVER,
Sale and Lease-Back Transaction shall not include any arrangement first
entered into prior to the date of this Indenture and shall not include any
transaction pursuant to which the Company sells Operating Property to, and
thereafter purchases energy or services from, any entity which transaction is
ordered or authorized by any regulatory authority having jurisdiction over
the Company or its operations or is entered into pursuant to any plan or
program of industry restructuring ordered or authorized by any such regulatory
authority.
(jjj) "SECURITIES" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
(kkk) "SECURITY REGISTER" and "SECURITY REGISTRAR" have the
respective meanings specified in Section 3.05.
(lll) "SPECIAL RECORD DATE" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.07.
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(mmm) "STATED MATURITY," when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
(nnn) "SUBSIDIARY" of a Person means (i) any corporation of which
more than 50% of the outstanding securities having ordinary voting power
shall at the time be owned or controlled, directly or indirectly, by such
Person or by one or more of its Subsidiaries or by such Person and one or
more of its Subsidiaries, or (ii) any partnership, association, joint venture
or similar business organization of which more than 50% of the ownership
interests having ordinary voting power shall at the time be so owned or
controlled. Unless otherwise expressly provided, all references herein to a
"Subsidiary" shall mean a Subsidiary of the Company.
(ooo) "SUBSTITUTED COLLATERAL BONDS," shall mean any mortgage bonds
issued by the Company under a Substituted Mortgage Indenture and delivered to
the Trustee pursuant to Section 4.09 hereof.
(ppp) "SUBSTITUTED MORTGAGE INDENTURE" shall mean a mortgage
indenture of the Company designated by the Company to the Trustee as a
Substituted Mortgage Indenture pursuant to Section 4.09.
(qqq) "TRUST INDENTURE ACT" means the Trust Indenture Act of 1939,
as amended, as in force at the date as of which this Indenture was executed;
provided, however, that in the event that such Act is amended after such
date, "TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 as so
amended.
(rrr) "TRUSTEE" means the Person named as the "Trustee" in the
first paragraph of this instrument until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person, "Trustee"
as used with respect to the Securities of any series shall mean the Trustee
with respect to Securities of that series.
(sss) "U.S. GOVERNMENT OBLIGATIONS" means securities which are (i)
direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America the timely payment of which is unconditionally
guaranteed by the full faith and credit of the United States of America
which, in either case, are not callable or redeemable at the option of the
issuer thereof or otherwise subject to prepayment, and shall also include a
depository receipt issued by a New York Clearing House bank or trust company
as custodian with respect to any such U.S. Government Obligation or a
specific payment or interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a
depository receipt, provided that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder
of such depository receipt or from any
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amount held by the custodian in respect of the U.S. Government Obligation or the
specific payment of interest on or principal of the U.S. Government Obligation
evidenced by such depository receipt.
(ttt) "VALUE" shall mean, with respect to a Sale and Lease-Back
Transaction, as of any particular time, the amount equal to the greater of (i)
the net proceeds to the Company from the sale or transfer of the property leased
pursuant to such Sale and Lease-Back Transaction or (ii) the net book value of
such property, as determined in accordance with generally accepted accounting
principles by the Company at the time of entering into such Sale and Lease-Back
transaction, in either case multiplied by a fraction, the numerator of which
shall be equal to the number of full years of the term of the lease that is part
of such Sale and Lease-Back Transaction remaining at the time of determination
and the denominator of which shall be equal to the number of full years of such
term, without regard to any renewal or extension options contained in such
lease.
(uuu) "VICE PRESIDENT," when used with respect to the Company or
the Trustee, means any vice president, whether or not designated by a number
or a word or words added before or after the title "vice president".
SECTION 1.02. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, other than as action permitted
by Sections 2.05 and 8.04, the Company shall furnish to the Trustee an Officer's
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion or each such
individual, such condition or covenant has been complied with.
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SECTION 1.03. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by a opinion of, any specified Person, it is not necessary that all such
matters be certified by, or covered by the opinion of, only one such Person, or
that they be so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give
an opinion as to such matters in one or several documents.
Any certificate or opinion of an Officer may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or representations by, counsel,
unless such Officer knows, or in the exercise of reasonable care should know,
that the certificate or Opinion of Counsel may be based, insofar as it relates
to factual matters, upon a certificate or opinion of, or representations by, an
Officer or Officers of the Company stating that the information with respect to
such factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "ACT" of the Holders 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
Indenture and (subject to Section 6.01) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) 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 the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his 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 the Trustee deems sufficient.
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(c) The ownership of Registered Securities shall be proved by the
Security Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every 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 Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(e) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a Board Resolution, fix in advance
a record date for the determination of Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other Act
may be given before or after such record date, but only the Holders of record at
the close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the
record date.
SECTION 1.05. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(i) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee and received by the Trustee at its Corporate Trust
Office, Attention: Corporate Trust Department or
(ii) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this Indenture, attention: Secretary, or at any other
address previously furnished in writing to the Trustee by the Company.
SECTION 1.06. NOTICE TO HOLDERS; WAIVER.
Where this Indenture or any Security provides for notice to Holders of
any event, such notice shall be deemed sufficiently given (unless otherwise
herein or in such Security expressly provided) if in writing and mailed,
first-class postage prepaid, to each
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Holder affected by such event, at his address as it appears in the Security
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders or the validity of the
proceedings to which such notice relates. Where this Indenture or any Security
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
SECTION 1.07. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or shall be
excluded, as the case may be.
SECTION 1.08. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.09. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 1.10. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities 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.
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SECTION 1.11. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 1.12. GOVERNING LAW.
This Indenture and the Securities shall be governed by and construed
in accordance with the laws (other than the choice of law provisions) of the
State of Wisconsin.
SECTION 1.13. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal (and premium, if any) need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day or on such other day as may be set out in the Officer's
Certificate pursuant to Section 3.01 at such Place of Payment with the same
force and effect as if made on the Interest Payment Date or Redemption Date, or
at the Stated Maturity, provided that no interest shall accrue for the period
from and after such Interest Payment Date, Redemption Date or Stated Maturity,
as the case may be.
SECTION 1.14. NO RECOURSE AGAINST OTHERS.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Securityholder, by accepting
a Security, waives and, releases all such liability. Such waivers and releases
are part of the consideration for the issuance of the Securities.
-15-
ARTICLE II
SECURITY FORMS
SECTION 2.01. FORMS GENERALLY.
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
Officers executing such Securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 3.03 for the authentication and delivery of such
Securities.
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
The definitive Securities shall be photocopied, printed, lithographed
or engraved on steel engraved borders or may be produced in any other manner,
all as determined by the Officers executing such Securities, as evidenced by
their execution of such Securities.
SECTION 2.02. FORM OF FACE OF SECURITY.
[If the Security is an Original Issue Discount Security, insert--FOR
PURPOSES OF SECTION 1272 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), THE AMOUNT OF ORIGINAL ISSUE DISCOUNT (AS DEFINED IN SECTION 1273(a)(1)
OF THE CODE AND TREASURY REGULATION SECTION 1.1273-1(a) WITH RESPECT TO THIS
SECURITY IS _______, THE ISSUE PRICE (AS DEFINED IN TREASURY REGULATION SECTION
1.1273-2) OF THIS SECURITY IS __________, THE ISSUE DATE (AS DEFINED IN SECTION
1275(a)(2) OF THE CODE AND TREASURY REGULATION SECTION 1.1273-2) OF THIS
SECURITY IS _______ AND THE YIELD TO MATURITY OF THIS SECURITY IS ___________.]
-16-
WISCONSIN PUBLIC SERVICE CORPORATION
-------------------------------------
No. _________ [$] _________
WISCONSIN PUBLIC SERVICE CORPORATION, a corporation duly organized and
existing under the laws of Wisconsin (herein called the "Company," which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to ____________, or registered
assigns, the principal sum of ___________ Dollars on ___________________ [If the
Security is to bear interest prior to Maturity, insert--, and to pay interest
thereon from _________________________________ or from the most recent Interest
Payment Date to which interest has been paid or duly provided for,
[semi-annually] [quarterly] [monthly] [on _______ and ________] in each year,
commencing ______________, at the rate of _____% per annum, until the principal
hereof is paid or made available for payment [If applicable insert--, and (to
the extent that the payment of such interest shall be legally enforceable) at
the rate of _____% per annum on any overdue principal and premium and on any
overdue installment of interest]. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the _____ of _____ (whether or not
a Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity,
insert--The principal of this Security shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon redemption or
at Stated Maturity and in such case the overdue principal of this Security shall
bear interest at the rate of ____% per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date of
such default in payment to the date payment of such principal has been made or
duly provided for. Interest on any overdue principal shall be payable on
demand. Any such interest on any overdue principal that is not so paid on
demand shall bear interest at the rate of ___% per annum (to the extent that the
payment of such interest shall be legally enforceable), which shall accrue from
the date of such demand for payment to the date payment of such interest has
been made or duly provided for, and such interest shall also be payable on
demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert--any such] interest on this Security will be made at the office or agency
of the Company maintained for that purpose in ______, in Dollars [if applicable,
insert--; provided, however, that at the
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option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register].
Prior to the Release Date (as hereinafter defined), the Securities
will be secured by First Mortgage Bonds (the "Collateral Bonds") issued and
delivered by the Company to the Trustee for the benefit of the Holders of the
Securities (as defined herein), issued under the First Mortgage and Deed of
Trust dated January 1, 1941, from the Company to First Wisconsin Trust Company
(now known as Firstar Bank Milwaukee, N.A.), Milwaukee, Wisconsin, as
supplemented and amended by the supplemental indentures thereto (the "First
Mortgage Indenture"). Reference is made to the First Mortgage Indenture and the
Indenture for a description of the rights of the Trustee as holder of the
Collateral Bonds, the property mortgaged and pledged under the First Mortgage
Indenture, the rights of the Company and of the Mortgage Trustee in respect
thereof, the duties and immunities of the applicable Mortgage Trustee, the terms
and conditions upon which the Collateral Bonds are held by the Trustee for the
benefit of the Holders of Securities, and the circumstances under which
additional First Mortgage Bonds may be issued.
FROM AND AFTER SUCH TIME AS ALL FIRST MORTGAGE BONDS (OTHER THAN
COLLATERAL BONDS) ISSUED UNDER THE FIRST MORTGAGE INDENTURE HAVE BEEN RETIRED
THROUGH PAYMENT, REDEMPTION OR OTHERWISE (INCLUDING THOSE FIRST MORTGAGE BONDS
THE PAYMENT FOR WHICH HAS BEEN PROVIDED FOR IN ACCORDANCE WITH THE FIRST
MORTGAGE INDENTURE) AT, BEFORE OR AFTER THE MATURITY THEREOF AND PROVIDED THAT
NO DEFAULT OR EVENT OF DEFAULT UNDER THE INDENTURE HAS OCCURRED AND IS
CONTINUING (THE "RELEASE DATE"), THE COLLATERAL BONDS SHALL CEASE TO SECURE THE
SECURITIES IN ANY MANNER, AND, AT THE OPTION OF THE COMPANY, THE SECURITIES
EITHER (a) WILL BECOME UNSECURED GENERAL OBLIGATIONS OF THE COMPANY OR (b) WILL
BE SECURED BY FIRST MORTGAGE BONDS ISSUED UNDER AN INDENTURE OTHER THAN THE
FIRST MORTGAGE INDENTURE. IN CERTAIN CIRCUMSTANCES PRIOR TO THE RELEASE DATE AS
PROVIDED IN THE INDENTURE, THE COMPANY IS PERMITTED TO REDUCE THE AGGREGATE
PRINCIPAL AMOUNT OF AN ISSUE OF COLLATERAL BONDS HELD BY THE TRUSTEE, BUT IN NO
EVENT PRIOR TO THE RELEASE DATE TO AN AMOUNT LESS THAN THE AGGREGATE PRINCIPAL
AMOUNT OUTSTANDING OF THE RELATED SERIES OF SECURITIES INITIALLY ISSUED
CONTEMPORANEOUSLY WITH SUCH COLLATERAL BONDS.
[Include the following paragraph if the Company elects to issue
Substituted Collateral Bonds (as defined in the Indenture): The Securities will
be secured by First Mortgage Bonds (the "Collateral Bonds") delivered by the
Company to the Trustee for the benefit of the Holders of the Securities, issued
under [the Substituted Mortgage Indenture (as defined in the Indenture)] from
the Company to ________________, as trustee (the "Mortgage Trustee"). Reference
is made to the Substituted Mortgage Indenture and the Indenture for a
description of the rights of the Trustee as holder of the Substituted Collateral
Bonds, the property mortgaged and pledged under the Substituted Mortgage
Indenture, the rights of the Company and of the Mortgage Trustee in respect
thereof, the duties and immunities of the Mortgage Trustee, the terms and
conditions upon which the Substituted Collateral Bonds are secured and the
circumstances under which additional Substituted Collateral Bonds may be
issued.]
-18-
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
WISCONSIN PUBLIC SERVICE CORPORATION
By
----------------------------------
Attest:
[SEAL]
------------------------
SECTION 2.03. FORM OF REVERSE OF SECURITY.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of December 1, 1998 (herein called the
"Indenture"), between the Company and Firstar Bank Milwaukee, N.A. National
Association, as Trustee (herein called the "Trustee," which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is
one of the series designated on the face hereof[, limited in aggregate principal
amount to $_________].
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 nor more than 45 days' notice by first class
mail, [if applicable, insert--(l) on ______ in any year commencing with the year
______ and ending with the year _____ through operation of the sinking fund for
this series at a Redemption Price equal to 100% of the principal amount, and
(2)] at any time [on or after _______, _______], as a whole or in part, at the
election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount):
If redeemed [on or before ______________, ____%, and if redeemed]
during the 12-month period beginning ____________________ of the years
indicated,
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Redemption Redemption
Year Price Year Price
---- ----- ---- -----
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption [(if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued and unpaid
interest to the Redemption Date, but interest installments whose Stated Maturity
is on or prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 nor more than 45 days' notice by first class
mail, (1) on ____________ in any year commencing with the year ____ and ending
with the year ____ through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below,
and (2) at any time [on or after ____________], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below:
If redeemed during a 12-month period beginning ________________ of the
years indicated,
Redemption Price
for
Redemption Price Redemption
For Redemption Otherwise
Through Operation Than Through
of the Operation
Year Sinking Fund of the Sinking Fund
---- ------------ -------------------
and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued and unpaid interest to the Redemption
Date, but interest installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such Securities, or one or
more Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
-20-
[Notwithstanding the foregoing, the Company may not, prior to
________, redeem any Securities of this series as contemplated by [clause (2)
of] the preceding paragraph as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of moneys borrowed having
an interest cost to the Company (calculated in accordance with generally
accepted financial practice) of less than __% per annum.]
[The sinking fund for this series provides for the redemption on
_______ in each year beginning with the year _____ and ending with the year
______ of [not less than] $__________ [("mandatory sinking fund") and not more
than $____________] aggregate principal amount of Securities of this series.]
[Securities of this series acquired or redeemed by the Company otherwise than
through [mandatory] sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made--in the
[inverse] order in which they become due.]
[In the event of redemption of this Security in part only, a new
Security or Securities of this series for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[If the Security is not an Original Issue Discount Security, insert --
If any Event of Default with respect to Securities of this series shall occur
and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.] [If the Security is an Original Issue Discount Security, insert --
If an Event of Default with respect to Securities of this series shall occur and
be continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal--insert formula for determining the
amount.] Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal and overdue interest (in each case
to the extent that the payment of such interest shall be legally enforceable),
all of the Company's obligations in respect of the payment of the principal of
and interest, if any, on the Securities of this series shall terminate.
[This Security is subject to Defeasance as described in the
Indenture.]
The Indenture may be modified by the Company and the Trustee without
consent of any Holder with respect to certain matters as described in the
Indenture. In addition, the Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in principal amount of
the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of a majority in
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall bind such Holder and all future Holders of this
Security and of
-21-
any Security issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series, of authorized denominations and for the same Stated Maturity and
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $_______ and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Indenture imposes certain limitations on the ability of the
Company to, among other things, merge or consolidate with any other Person or
sell, assign, transfer or lease all or substantially all of its properties or
assets [If other covenants are applicable pursuant to the provisions of Section
3.01, insert here]. All such covenants and limitations are subject to a number
of important qualifications and exceptions. The Company must report
periodically to the Trustee on compliance with the covenants in the Indenture.
A director, officer, employee or shareholder, as such, of the Company
shall not have any liability for any obligations of the Company under this
Security or the Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder, by accepting a Security,
waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of this Security.
-22-
[If applicable, insert -- Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures ("CUSIP"), the
Company has caused CUSIP numbers to be printed on the Securities of this series
as a convenience to the Holders of the Securities of this series. No
representation is made as to the correctness or accuracy of such numbers as
printed on the Securities of this series and reliance may be placed only on the
other identification numbers printed hereon.]
All capitalized terms used in this Security without definition which
are defined in the Indenture shall have the meanings assigned to them in the
Indenture.
-23-
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign
and transfer this Security to
--------------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
--------------------------------------------------------
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Dated: Your Signature:
------------------------ ----------------------------------
(Sign exactly as your
name appears on the other
side of this Security)
Signature Guaranty:
----------------------------------------------------
[Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements of
the Transfer Agent, which requirements will
include membership or participation in STAMP or
such other signature guarantee program as may be
determined by the Transfer Agent in addition to,
or in substitution for, STAMP, all in accordance
with the Exchange Act.]
Social Security Number or Taxpayer Identification
Number:
--------------------------------------------------
-24-
SECTION 2.04. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
Dated:
-----------------------
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
----------------------------------
As Trustee
By
-------------------------------
Authorized Signatory
SECTION 2.05. SECURITIES ISSUABLE IN THE FORM OF A GLOBAL SECURITY.
(a) If the Company shall establish pursuant to Section 3.01 hereof
that the Securities of a particular series are to be issued in whole or in part
in the form of one or more Global Securities, then the Company shall execute and
the Trustee shall, in accordance with Section 3.03 hereof and the Company Order
delivered to the Trustee hereunder, authenticate and deliver such Global
Security or Securities, which (i) represent, shall be denominated in an amount
equal to the aggregate principal amount of, and shall have the same terms as,
the outstanding Securities of such series to be represented by such Global
Security or Securities, (ii) shall be registered in the name of the Depositary
or its nominee, (iii) shall be delivered by the Trustee to the Depositary or
pursuant to the Depositary's instruction and (iv) shall bear a legend
substantially to the following effect: "This Security is a Global Security
registered in the name of the Depositary (referred to herein) or a nominee
thereof and, unless and until it is exchanged in whole or in part for the
individual Securities represented hereby, this Global Security may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary. Unless this Global Security is
presented by an authorized representative of The Depository Trust Company (55
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx), to the Trustee for registration of transfer,
exchange or payment, and any certificate 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 is made to Cede & Co., any
transfer, pledge or other use hereof for value or otherwise by or to any person
is wrongful since the registered owner hereof, Cede & Co., has an interest
herein" or such other legend as may be required by the rules and regulations of
the Depositary.
(b) Notwithstanding any other provision of Section 3.05 hereof or of
this Section 2.05, unless the terms of a Global Security expressly permit such
Global Security to be exchanged in whole or in part for individual Securities, a
Global Security may be transferred, in whole but not in part, only as described
in the legend thereto.
-25-
(c) (i) If at any time the Depositary for a Global Security
notifies the Company that it is unwilling or unable to continue as Depositary
for such Global Security or if at any time the Depositary for the Global
Security shall no longer be eligible or in good standing under the Exchange
Act or other applicable statute or regulation, the Company shall appoint a
successor Depositary with respect to such Global Security. If a successor
Depositary for such Global Security is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such
ineligibility, the Company's election pursuant to Section 3.01(3) hereof
shall no longer be effective with respect to the series of Securities
evidenced by such Global Security and the Company shall execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery
of individual Securities of such series in exchange for such Global Security,
shall authenticate and deliver, individual Securities of such series of like
tenor and terms in definitive form in an aggregate principal amount equal to
the principal amount of the Global Security in exchange for such Global
Security. The Trustee shall not be charged with knowledge or notice of the
ineligibility of a Depositary unless a responsible officer assigned to and
working in its corporate trustee administration department shall have actual
knowledge thereof.
(ii) The Company may at any time and in its sole discretion
determine that all Outstanding (but not less than all) Securities of a series
issued or issuable in the form of one or more Global Securities shall no
longer be represented by such Global Security or Securities. In such event
the Company shall execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of individual Securities in exchange for
such Global Security, shall authenticate and deliver individual Securities of
like tenor and terms in definitive form in an aggregate principal amount
equal to the principal amount of such Global Security or Securities in
exchange for such Global Security or Securities.
(iii) In any exchange provided for in any of the preceding two
paragraphs, the Company will execute and the Trustee will authenticate and
deliver individual Securities in definitive registered form in authorized
denominations. Upon the exchange of a Global Security for individual
Securities, such Global Security shall be cancelled by the Trustee.
Securities issued in exchange for a Global Security pursuant to this Section
shall be registered in such names and in such authorized denominations as the
Depositary for such Global Security, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Securities to the Depositary for delivery to the
persons in whose names such Securities are so registered, or if the
Depositary shall refuse or be unable to deliver such Securities, the Trustee
shall deliver such Securities to the persons in whose names such Securities
are registered, unless otherwise agreed upon between the Trustee and the
Company, in which event the Company shall cause the Securities to be
delivered to the persons in whose names such Securities are registered.
(d) Neither the Company, the Trustee, any Authenticating Agent
nor any paying agent shall have any responsibility or liability for any
aspect of the records relating to, or payments made on account of, beneficial
ownership interests of a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interest.
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(e) Pursuant to the provisions of this subsection, at the option of
the Trustee and upon 30 days' written notice to the Depositary but not prior to
the first Interest Payment Date of the respective Global Securities of the same
series, the Depositary shall be required to surrender any two or more Global
Securities of the same series which have identical terms, including, without
limitation, identical maturities, interest rates and redemption provisions to
the Trustee, and the Company shall execute and the Trustee shall authenticate
and deliver to, or at the direction of, the Depositary a Global Security of the
same series in principal amount equal to the aggregate principal amount of, and
with all terms identical to, the Global Securities surrendered thereto. The
exchange contemplated in this subsection shall be consummated at least 30 days
prior to any Interest Payment date applicable to any of the Global Securities
surrendered to the Trustee. Upon any exchange of any Global Security, whether
pursuant to this Section or pursuant to Section 3.05 or Section 12.07 hereof,
the aggregate principal amount of the Securities or a series shall be the same
before and after such exchange, after giving effect to any retirement of
Securities of such series.
SECTION 2.06. CUSIP NUMBER.
The Company in issuing Securities of any series may use a "CUSIP"
number, and, if so, the Trustee may use the CUSIP number in notices of
redemption or exchange as a convenience to Holders of such series; provided,
that any such notice may state that no representation is made as to the
correctness or accuracy of the CUSIP number printed on the notice or on the
Securities of such series, and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the CUSIP number of any series of
Securities.
SECTION 2.07. PAYMENT OF SECURITIES.
Payment of the principal, interest and premium on all Securities shall
be payable as follows:
(a) On or before 9:30 a.m., New York City time, or such other time as
shall be agreed upon between the Trustee and the Company, of the day on which
payment of principal, interest and premium is due on any Global Security
pursuant to the terms thereof, the Company shall deliver to the Trustee funds
available on such date sufficient to make such payment, by wire transfer of
immediately available funds or by instructing the Trustee to withdraw sufficient
funds from an account maintained by the Company with the Trustee or such other
method as is acceptable to the Trustee. On or before 10:00 a.m., New York City
time, or such other time as shall be agreed upon between the Trustee and the
Depositary, of the day on which any payment of interest is due on any Global
Security (other than at maturity), the Trustee shall pay to the Depositary such
interest in same day funds. On or before 10:00 a.m., New York City time or such
other time as shall be agreed upon between the Trustee and the Depositary, of
the day on which principal, interest payable at maturity and premium, if any, is
due on any Global Security, the Trustee shall deposit with the Depositary the
amount equal to the principal, interest payable at maturity and premium, if any,
by wire transfer into the account specified by the Depositary. As a condition
to the payment, at
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maturity or upon redemption, of any part of the principal or interest on and
applicable premium of any Global Security, the Depositary shall surrender, or
cause to be surrendered, such Global Security to the Trustee, whereupon a new
Global Security shall be issued to the Depositary pursuant to Section 3.05
hereof.
(b) With respect to any Security that is not a Global Security,
principal, applicable premium and interest due at the maturity of the Security
shall be payable in immediately available funds when due upon presentation and
surrender of such Security at the corporate trust office of the Trustee or at
the authorized office of any paying agent. Interest on any Security that is not
a Global Security (other than interest payable at maturity) shall be paid by
check mailed to the Holder thereof at such Holder's address as it appears on the
register by check payable in clearinghouse funds; PROVIDED that if the Trustee
receives a written request from any Holder of Securities, the aggregate
principal amount of which having the same Interest Payment Date equals or
exceeds $10,000,000, on or before the applicable Regular Record Date for such
Interest Payment Date, interest shall be paid by wire transfer of immediately
available funds to a bank within the continental United States designated by
such Holder in its request or by direct deposit into the account of such Holder
designated by such Holder in its request if such account is maintained with the
Trustee or any paying agent.
(c) The Trustee shall receive the Collateral Bonds or Substituted
Collateral Bonds from the Company as provided in this Indenture and shall hold
the Collateral Bonds or Substituted Collateral Bonds, and any and all sums
payable thereon or with respect thereto or realized therefrom, in trust for the
benefit of the holders of the Securities, as herein provided. All payments made
by or on behalf of the Company to the Trustee on a series of Collateral Bonds or
Substituted Collateral Bonds shall be deemed to be a payment by the Company
pursuant to this Section 2.07 and shall be applied by the Trustee to pay, when
due, principal of, premium, if any, and/or interest on the Related Series of
Securities and, to the extent so applied, shall satisfy the Company's
obligations on such Securities. The Company shall cause payment to be made to
the Trustee of principal of, premium, if any, and (if applicable) interest on a
series of Collateral Bonds in a manner and at a time that will enable the
Trustee to make payments when due, of the principal of, premium, if any, and
interest on the Related Series of Securities.
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ARTICLE III
THE SECURITIES
SECTION 3.01. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more series.
There shall be established in or pursuant to a Board Resolution, and set forth
in an Officer's Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Sections 3.04, 3.05, 3.06, 10.06 or 12.07);
(3) whether any Securities of the series are to be issuable in
permanent global form with or without coupons and, if so, (i) whether
beneficial owners of interests in any such permanent global Security may
exchange such interests for Securities of such series and of like tenor of
any authorized form and denomination and the circumstances under which any
such exchanges may occur, if other than in the manner provided in Sections
2.05 and 3.05, and (ii) the name of the Depositary with respect to any
global Security;
(4) the date or dates on which the principal of the Securities of the
series is payable;
(5) the rate or rates at which the Securities of the series shall
bear interest, if any, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest shall be payable
and the Regular Record Date for the interest payable on any Interest
Payment Date and, if applicable to such series of Securities, the basis
points and United States Treasury rate(s) and any other rates to be used in
calculating the reset rate;
(6) the place or places where the principal of (and premium, if any)
and interest on Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company, pursuant to
any sinking fund or otherwise;
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(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation, and, where applicable, the
obligation of the Company to select the Securities to be redeemed;
(9) the denominations in which Securities of the series shall be
issuable;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
6.02;
(11) additional Events of Default with respect to Securities of the
series, if any, other than those set forth herein;
(12) if either or both of Section 14.02 and Section 14.03 shall be
inapplicable to the Securities of the series (provided that if no such
inapplicability shall be specified, then both Section 14.02 and Section
14.03 shall be applicable to the Securities of the series);
(13) if other than U.S. dollars, the currency or currencies or units
based on or related to currencies in which the Securities of such series
shall be denominated and in which payments or principal of, and any premium
and interest on, such Securities shall or may by payable;
(14) additional covenants with respect to Securities of the series, if
any, other than those set forth herein;
(15) if prior to the Release Date, the designation of the Related
Series of Collateral Bonds being delivered to the Trustee in connection
with the issuance of such Securities,
(16) if on or after the Release Date, the designation of the Related
Series of Substituted Collateral Bonds, if any,
(17) if other than the Trustee, the identity of the Registrar and any
Paying Agent; and
(18) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such Board Resolution and set forth in such Officer's Certificate or in any
such Indenture supplemental hereto.
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If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officer's
Certificate setting forth, or providing the manner for determining, the terms of
the Securities of such series.
SECTION 3.02. DENOMINATIONS.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 3.01. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 3.03. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President or one of
its Vice Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile. The seal of the Company
may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Securities. Typographical and other
minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any Security that
has been duly authenticated and delivered by the Trustee.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and make such Securities available for
delivery. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 2.01 and 3.01, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Sections 315(a)
through (d) of the Trust Indenture Act) shall be fully protected in relying
upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 2.01, that such form has
been established in conformity with the provisions of this Indenture;
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(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 3.01, that such terms have
been established in conformity with the provisions of this Indenture;
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their terms, except
to the extent enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting the
enforcement of creditors' rights generally and by the effect of general
principles of equity (regardless of whether enforceability is considered in a
proceeding in equity or at law);
(d) if prior to the Release Date, that the Related Series of
Collateral Bonds being delivered to the Trustee in connection with the issuance
of such Securities when authenticated and delivered by the Mortgage Trustee and
issued by the Company in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute valid and binding obligations of the
Company, enforceable in accordance with their terms, except to the extent
enforcement may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting the enforcement of creditors' rights
generally and by the effect of general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity or at law) and
except as enforcement of provisions thereof may be limited by state laws
affecting the remedies for the enforcement of the security provided for in the
First Mortgage Indenture; and that such Collateral Bonds are entitled to the
benefit of the First Mortgage Indenture, equally and ratably, with all other
First Mortgage Bonds (if any) outstanding under the First Mortgage Indenture,
except as to sinking fund provisions;
(e) if any Substituted Collateral Bonds are to be delivered, that the
Related Series of Substituted Collateral Bonds being delivered to the Trustee in
connection with the issuance of such Securities when authenticated and delivered
by the trustee under the Substituted Mortgage Indenture and issued by the
Company in the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute valid and binding obligations of the Company,
enforceable in accordance with their terms, except to the extent enforcement may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other similar laws affecting the enforcement of creditors' rights generally and
by the effect of general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law) and except as
enforcement of provisions thereof may be limited by state laws affecting the
remedies for the enforcement of the security provided for in the Substituted
Mortgage Indenture; and that such Substituted Collateral Bonds are entitled to
the benefit of the Substituted Mortgage Indenture, equally and ratably, with all
other First Mortgage Bonds (if any) outstanding under the Substituted First
Mortgage Indenture, except as to sinking fund provisions;
(f) that no consent, approval, authorization, order, registration or
qualification of or with any court or any governmental agency or body having
jurisdiction over the Company is required for the execution and delivery of such
Securities by the Company, except
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such as have been obtained (except that no opinion need be expressed as to state
securities or Blue Sky laws).
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee, or in the written opinion of
counsel to the Trustee (which counsel may be an employee of the Trustee) such
authentication may not lawfully be made or would involve the Trustee in personal
liability.
Notwithstanding the provisions of Section 3.01 and of the immediately
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officer's
Certificate otherwise required pursuant to Section 3.01 or the Company Order and
Opinion of Counsel otherwise required pursuant to the immediately preceding
paragraph at or prior to the time of authentication of each Security of such
series if such documents are delivered at or prior to the authentication upon
original issuance of the first Security of such series to be issued.
If the Company shall establish pursuant to Section 3.01 that the
Securities of a series are to be issued in the form of one or more global
Securities, then the Company shall execute and the Trustee shall, in accordance
with this section and the Company Order with respect to the authentication and
delivery of such series, authenticate and deliver one or more global Securities
that (i) shall be in an aggregate amount equal to the aggregate principal amount
specified in such Company Order, (ii) shall be registered in the name of the
Depositary therefor or its nominee, and (iii) shall be made available for
delivery by the Trustee to the Depositary or pursuant to the Depositary's
instruction.
Each depositary designated pursuant to Section 3.01 must, at the time
of its designation and at all times while it serves as depositary, be a clearing
agency registered under the Exchange Act and any other applicable statute or
regulation.
Unless otherwise provided for in the form of Security, each Security
shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture.
SECTION 3.04. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
make available for delivery, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive
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Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of such
Securities.
In the case of Securities of any series, such temporary Securities may
be in global form, representing all or a portion of the Outstanding Securities
of such series.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions of Section 3.05), if temporary
Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company in a Place of Payment for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of any
series, the Company shall execute and the Trustee shall authenticate and make
available for delivery in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations and of like
tenor. Until so exchanged, the temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities of such series.
If temporary Securities of any series are issued in global form, any
such temporary global Security shall, unless otherwise provided therein, be
delivered to the office of the Depositary therefor for credit to the respective
accounts of the beneficial owners of such Securities (or to such other accounts
as they may direct).
SECTION 3.05. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "SECURITY REGISTER") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of registration of transfers of Securities. The
Trustee is hereby appointed "SECURITY REGISTRAR" for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency of the Company in Place of Payment for that
series, the Company shall execute, and the Trustee shall authenticate and make
available for delivery, in the name of the designated transferee or transferees,
one or more new Securities of the same series, of any authorized denominations
and of a like aggregate principal amount and Stated Maturity.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and Stated Maturity, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any Securities
are so surrendered for exchange, the
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Company shall execute, and the Trustee shall authenticate and make available for
delivery, the Securities which the Holder making the exchange is entitled to
receive.
If the principal amount and applicable premium, of part but not all of
a Global Security is paid, then upon surrender to the Trustee of such Global
Security, the Company shall execute and the Trustee shall authenticate, deliver
and register a Global Security in an authorized denomination in aggregate
principal amount equal to, and having the same terms and of the same series as,
the unpaid portion of such Global Security.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided in the Securities to be transferred or
exchanged, no service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.04, 10.06 or 12.07 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 12.03 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
SECTION 3.06. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new
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Security of the same series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.07. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "DEFAULTED INTEREST") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this
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Section 3.07 provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of
the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder of Securities of such series at his address
as it appears in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall
no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Section 3.07, such manner of payment shall be deemed practicable by
the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.08. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Section 3.07) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee or any agent of the Company or the
Trustee shall have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interest of a
Security in global form, or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interest. Notwithstanding the
foregoing, with respect to any Security in global form, nothing herein shall
prevent the Company or the Trustee or any agent of the Company or the Trustee
from giving effect to any written certification, proxy or other authorization
furnished by any Depositary (or its nominee), as a Holder, with respect to such
Security in global form or impair, as between such Depositary and owners of
beneficial interests in such Security in
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global form, the operation of customary practices governing the exercise of the
right of such Depositary (or its nominee) as holder of such Security in global
form.
SECTION 3.09. CANCELLATION.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by this Indenture. All cancelled Securities shall be held by the Trustee and
may be destroyed (and, if so destroyed, certification of their destruction shall
be delivered to the Company, unless, by a Company Order, the Company shall
direct that cancelled Securities be returned to it).
SECTION 3.10. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 3.01 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a year of twelve 30-day months.
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ARTICLE IV
COLLATERAL BONDS; PLEDGED
SUBSTITUTED COLLATERAL BONDS
SECTION 4.01. DELIVERY AND ACCEPTANCE OF COLLATERAL BONDS.
Upon the issuance of Securities hereunder at any time prior to the
Release Date, the Company shall issue and deliver to the Trustee to hold in
trust for the benefit of the Holders of the Securities as described in Section
4.08, and the Trustee shall accept therefor, a Related Series of Collateral
Bonds registered in the name of the Trustee conforming to the requirements of
Section 4.02.
SECTION 4.02. TERMS OF COLLATERAL BONDS.
Each series of Collateral Bonds delivered to the Trustee pursuant to
Section 4.06 shall have the same stated rate or rates of interest (or interest
calculated in the same manner), Interest Payment Dates, stated maturity date and
redemption provisions, and shall be in the same aggregate principal amount, as
the series of Securities in connection with which such Collateral Bonds shall
have been issued and delivered.
SECTION 4.03. COLLATERAL BONDS HELD BY THE TRUSTEE.
The Trustee, as a Holder of Collateral Bonds, shall attend any meeting
of Bondholders under the First Mortgage Indenture as to which it receives due
notice, or, at its option, shall deliver its proxy in connection therewith.
Either at such meeting, or otherwise where consent of Holders of First Mortgage
Bonds issued under the First Mortgage Indenture is sought without a meeting, the
Trustee shall vote all of the Collateral Bonds held by it, or shall consent or
withhold its consent with respect thereto, as directed by the Holders of not
less than a majority in the aggregate principal amount of the outstanding
Securities; provided, however, that the Trustee shall not vote as such Holder of
any particular series of Collateral Bonds in favor of, or give its consent to,
any action which in the Trustee's opinion, would materially adversely affect
such series of Collateral Bonds in a manner not shared generally by all other
Collateral Bonds, except upon notification by the Trustee to the Holders of the
Related Series of Securities of such proposal and consent thereto of the Holders
of not less than a majority in aggregate principal amount of the outstanding
Securities of such series.
SECTION 4.04. NO TRANSFER OF COLLATERAL BONDS; EXCEPTION.
Except (i) as required to effect an assignment to a successor trustee
under this Indenture, (ii) pursuant to Section 4.05 or Section 4.07 hereof or
(iii) in compliance with a final order of a court of competent jurisdiction in
connection with any bankruptcy or reorganization proceeding of the Company, the
Trustee shall not sell, assign or transfer the Collateral Bonds and the Company
shall issue stop transfer instructions to the Mortgage Trustee and any transfer
agent under the First Mortgage Indenture to effect compliance with this Section
4.04.
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SECTION 4.05. DELIVERY TO THE COMPANY OF ALL COLLATERAL BONDS.
When the obligation of the Company to make payment with respect to the
principal of and premium, if any, and interest on any series of Collateral Bonds
shall cease and be discharged pursuant to Section 4.08 or Section 5.01, the
Trustee shall, upon written request of the Company and receipt of the
certificate of the Expert described in Section 4.10(b) hereof (if such
certificate is then required by Section 4.10(b) hereof), deliver to the Company
all of such Collateral Bonds, together with such appropriate instruments of
transfer or release as may be reasonably requested by the Company. All
Collateral Bonds delivered to the Company in accordance with this Section 4.03
shall be delivered by the Company to the Mortgage Trustee for cancellation.
SECTION 4.06. FURTHER ASSURANCES.
The Company, at its own expense, shall do such further lawful acts and
things, and execute and deliver such additional conveyances, assignments,
assurances, agreements and instruments, as may be necessary in order to better
assign, assure and confirm to the Trustee its interest in the Collateral Bonds
and for maintaining, protecting and preserving such interest. The Trustee may
petition any court of competent jurisdiction to seek any relief it considers
necessary or advisable in order to maintain, protect and preserve such interest.
SECTION 4.07. EXCHANGE AND SURRENDER OF COLLATERAL BONDS.
At any time at the written direction of the Company, the Trustee shall
surrender to the Company all or part of the Collateral Bonds in exchange for
Collateral Bonds equal in aggregate outstanding principal amount to, in
different denominations than, but of the same series and with all other terms
identical to, the Collateral Bonds so surrendered to the Company. In addition,
at any time a Security shall cease to be entitled to any benefit or security
under this Indenture pursuant to Section 5.01, the Trustee shall surrender an
equal principal amount of the Related Series of Collateral Bonds, subject to the
limitations of this Section 4.07, to the Company for cancellation. The Trustee
shall, together with such Collateral Bonds, deliver to the Company such
appropriate instruments of transfer, and such appropriate instruments for
releasing the Company of its obligations under such surrendered Collateral
Bonds, as the Company may reasonably request. Prior to the surrender required
by this paragraph, the Trustee shall receive from the Company, and (subject to
Section 7.01) shall be fully protected in relying upon, an Officers' Certificate
stating (i) the aggregate outstanding principal amount of the Collateral Bonds
of the issue surrendered by the Trustee, after giving effect to such surrender,
(ii) the aggregate outstanding principal amount of the Related Series of
Securities, (iii) that the surrender of the Collateral Bonds will not result in
any default under this Indenture, and (iv) that any Collateral Bonds to be
received in exchange for the Collateral Bonds being surrendered comply with the
provisions of this Section 4.07 and the First Mortgage Indenture.
The Company shall not be permitted to cause the surrender or exchange
of all or any part of an issue of Collateral Bonds contemplated in this Section
4.07, if after such surrender or exchange, the aggregate outstanding principal
amount of the Related Series of
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Securities would exceed the aggregate outstanding principal amount of such issue
of Collateral Bonds held by the Trustee. Any Collateral Bonds received by the
Company pursuant to this Section 4.07 shall be delivered to the Mortgage Trustee
for cancellation. Notwithstanding anything herein to the contrary, until the
Release Date, the Company shall preserve and maintain the lien of this
Indenture, and shall not permit, at anytime prior to the Release Date, the
aggregate principal amount of Collateral Bonds held by the Trustee to be less
than the aggregate amount of Securities Outstanding.
SECTION 4.08. COLLATERAL BONDS AS SECURITY FOR SECURITIES;
APPLICATION OF PAYMENT ON COLLATERAL BONDS.
Until the Release Date and subject to Article Five, the Related Series
of Collateral Bonds delivered to the Trustee, in trust for the benefit of the
Holders of the applicable issue of Securities, shall pay principal of, interest
and premium, if any, in accordance with their respective terms and shall serve
as security for any and all obligations of the Company under such Securities,
including, but not limited to (1) the full and prompt payment of the principal
of and premium, if any, on such Related Series of Securities when and as the
same shall become due and payable in accordance with the terms and provisions of
this Indenture or such Related Series of Securities, either at the stated
maturity thereof, upon acceleration of the maturity thereof, or upon redemption
(any such payment with respect to such Related Series of Securities to be made
by the Company through payment on the Related Series of Collateral Bonds and
applied by the Trustee to satisfy the Company's corresponding obligations under
such Securities), and (2) the full and prompt payment of any interest on such
Related Series of Securities when and as the same shall become due and payable
in accordance with the terms and provisions of this Indenture or such Related
Series of Securities. Any payment by the Company of principal of, premium, if
any, and interest on, a series of First Mortgage Bonds will be applied by the
Trustee to satisfy the Company's obligations with respect to the principal of,
premium, if any, and interest on, the Related Series of Securities.
Notwithstanding anything in this Indenture to the contrary, from and
after the Release Date, the obligation of the Company to make payment with
respect to the principal of and premium, if any, and interest on the Collateral
Bonds shall cease and be discharged as provided in the supplemental trust
indenture or indentures to the First Mortgage Indenture creating such Collateral
Bonds and the Collateral Bonds shall cease to secure in any manner Securities
theretofore or subsequently issued. From and after the Release Date, any
conditions to the issuance of Securities that refer or relate to Collateral
Bonds or the First Mortgage Indenture shall be inapplicable unless the Company
delivers Substituted Collateral Bonds to the Trustee pursuant to Section 4.09
hereof, in which event such provisions shall be deemed to refer or relate to the
Substituted Collateral Bonds. Following the Release Date, the Company shall
cause the First Mortgage Indenture to be discharged and satisfied and the
Company shall not issue any additional First Mortgage Bonds under the First
Mortgage Indenture. Notice of the occurrence of the Release Date shall be given
by the Trustee to the Holders of the Securities in the manner provided in
Section 1.06 not later than 30 days after the Company notifies the Trustee of
the occurrence of the Release Date.
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SECTION 4.09. SUBSTITUTED COLLATERAL BONDS.
(a) The Company shall notify the Trustee not less than 90 days prior
to the Release Date if the Company has determined to deliver to the Trustee on
the Release Date Substituted Collateral Bonds in an aggregate principal amount
equal to the aggregate principal amount of Securities outstanding on the Release
Date in trust for the benefit of the Holders from time to time of the Securities
issued under this Indenture as security for any and all obligations of the
Company under the Securities, including but not limited to, (1) the full and
prompt payment of the principal of and premium, if any, on the Securities when
and as the same shall become due and payable in accordance with the terms and
provisions of this Indenture or the Securities, either at the stated maturity
thereof, upon acceleration of the maturity thereof or upon redemption, and (2)
the full and prompt payment of any interest on the Securities when and as the
same shall become due and payable in accordance with the terms and provisions of
this Indenture or the Securities.
(b) The Substituted Collateral Bonds to be delivered pursuant to the
notice described in Section 4.09 (a) shall be delivered in separate series and
issues corresponding to the series and issues of Securities outstanding on the
Release Date, each issue of Substituted Collateral Bonds having the same stated
rate or rates of interest (or interest calculated in the same manner), Interest
Payment Dates, stated maturity date and redemption provisions, and in the same
aggregate principal amount, as the Related Series of Securities outstanding on
the Release Date.
(c) The notice described in Section 4.09(a) shall also state that on
the Release Date the Company shall deliver to the Trustee a supplemental
indenture to this Indenture that will provide, among other things, that upon the
issuance of Securities hereunder on or after the Release Date, the Company shall
deliver to the Trustee in trust for the benefit of the Holders as described in
Section 4.09(a), and the Trustee shall accept therefor, a Related Series of
Substituted Collateral Bonds registered in the name of the Trustee and
conforming to the requirements therein specified.
(d) The determination whether to issue and deliver Substituted
Collateral Bonds shall be made in the Company's sole discretion and without any
obligation to do so.
(e) In the event that the Company does not deliver the notice
described in Section 4.09(a), the Securities outstanding on the Release Date
shall, as of the Release Date, no longer be entitled to the benefit of the
security of the Collateral Bonds and shall thereafter be general unsecured
obligations of the Company.
(f) Following the delivery of Substituted Collateral Bonds to the
Trustee pursuant to this Section 4.09, all of the provisions of this Indenture
relating to Collateral Bonds and the First Mortgage Indenture shall also apply
to the Substituted Collateral Bonds and the Substituted Mortgage Indenture, to
the same extent as if the Substituted Collateral Bonds and Substituted Mortgage
Indenture were expressly referred to therein.
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SECTION 4.10. FAIR VALUE CERTIFICATE
(a) Upon the delivery by the Company to the Trustee of Collateral
Bonds pursuant to Section 4.06 hereof, or Substituted Collateral Bonds pursuant
to Section 4.09 hereof, the Company shall simultaneously therewith deliver to
the Trustee a certificate of an Expert (1) stating that it is familiar with the
provisions of such Collateral Bonds or Substituted Collateral Bonds and of this
Indenture; (2) stating the principal amount of such Collateral Bonds or
Substituted Collateral Bonds so delivered, the stated interest rate (or method
of calculation of interest) of such Collateral Bonds or Substituted Collateral
Bonds and the stated maturity date of such Collateral Bonds or Substituted
Collateral Bonds; (3) identifying the Securities being issued contemporaneously
therewith, and (4) stating the fair value to the Company of such Collateral
Bonds or Substituted Collateral Bonds. If the fair value to the Company of the
Collateral Bonds or Substituted Collateral Bonds so delivered, as described in
the certificate to be delivered pursuant to this Section 4.10(a), both (w) is
equal to or exceeds (i) $25,000 and (ii) 1% of the principal amount of the
Securities outstanding at the date of delivery of such Collateral Bonds or
Substituted Collateral Bonds and (x) together with the fair value to the
Company, as described in the certificates to be delivered pursuant to this
Section 4.10(a), of all other Collateral Bonds or Substituted Collateral Bonds
delivered to the Trustees since the commencement of the then current calendar
year, is equal to or exceeds 10% of the principal amount of the Securities
Outstanding at the date of delivery of such Collateral Bonds or Substituted
Collateral Bonds, then the certificate required by this Section 4.10 (a) shall
(y) be delivered by an Expert who shall be independent of the Company and
satisfactory to the Trustee in its reasonable judgement and (z) shall, in
addition to the verifications described above, state the fair value to the
Company of all Collateral Bonds or Substituted Collateral Bonds delivered to the
Trustee pursuant to Section 4.08 or 4.09 hereof since the commencement of the
then current year as to which a certificate was not delivered by an Expert
independent of the Company.
(b) If Collateral Bonds or Substituted Collateral Bonds are delivered
or surrendered to the Company pursuant to Section 4.03 or 4.05 hereof, the
Company shall simultaneously therewith deliver to the Trustee a certificate of
an Expert (1) stating that it is familiar with the provisions of such Collateral
Bonds or Substituted Collateral Bonds and of this Indenture, (2) stating the
principal amount of such Collateral Bonds or Substituted Collateral Bonds so
delivered, the stated interest rate (or method of calculation of interest) of
such Collateral Bonds or Substituted Collateral Bonds, (3) if applicable,
identifying the Securities, the payment of the interest on and principal of
which has been discharged hereunder, and (4) stating that such delivery and
release will not impair the lien of this Indenture in contravention of the
provisions of this Indenture. If the fair value of the Collateral Bonds or
Substituted Collateral Bonds so delivered and released, as described in the
certificate to be delivered pursuant to this Section 4.10(b), both (1) is equal
to or exceeds (i) $25,000 and (ii) 1% of the principal amount of the outstanding
Securities at the date of release of such Collateral Bonds or Substituted
Collateral Bonds and (2) together with the fair value, as described in the
certificates to be delivered pursuant to this Section 4.10(b), of all other
Collateral Bonds or Substituted Collateral Bonds released from the lien of this
Indenture since the commencement of the then current calendar year, is equal to
or exceeds 10% of the principal amount of the Securities Outstanding at the date
of release of such Collateral Bonds
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or Substituted Collateral Bonds, then the certificate required by this Section
4.10(b) shall be delivered by an Expert who shall be independent of the Company.
If, in connection with a delivery or release of outstanding Collateral
Bonds or Substituted Collateral Bonds, the Company provides to the Trustee and
Opinion of Counsel stating that the certificate described by this Section 4.10
is not required by law, such certificate shall not be required to be delivered
hereunder in connection with such delivery or release.
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ARTICLE V
SATISFACTION AND DISCHARGE
SECTION 5.01. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for or in the form of Security for such series), when the
Trustee, upon Company Request and at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when
(a) either
(1) all Securities theretofore authenticated and delivered (other
than (A) Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 3.06 and (B) Securities for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 11.08) have been delivered to the Trustee for
cancellation; or
(2) all such Securities not theretofore delivered to the Trustee
for cancellation
(A) have become due and payable, or
(B) will become due and payable at their Stated Maturity within one
year, or
(C) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (A), (B) or (C) above, has deposited with the
Trustee as trust funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore delivered
to the Trustee for cancellation, for principal (and premium, if any) and
interest to the date of such deposit (in the case of Securities which have
become due and payable) or the Stated Maturity or Redemption Date, as the case
may be;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that all conditions precedent provided
for herein relating to the satisfaction and discharge of this Indenture have
been complied with.
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Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 7.07, the obligations of
the Company to any Authenticating Agent under Section 7.14 and, if money shall
have been deposited with the Trustee pursuant to subclause (2) of clause (a) of
this Section 5.01, the obligations of the Trustee under Section 5.02 and the
last paragraph of Section 11.08 shall survive.
If the Company shall have paid or caused to be paid in whole or in
part the principal of and premium, if any, and interest on any Security, as and
when the same shall become due and payable or the Company shall have delivered
to the Trustee for cancellation any outstanding Security, such Security shall
cease to be entitled to the lien, benefit or security interest under this
Indenture to the extent of such amounts paid. Upon a Security of any series
ceasing to be entitled to the lien, benefit or security under this Indenture,
the obligation of the Company to make payment with respect to principal of and
premium, if any, and interest on a principal amount of the Related Series of
Collateral Bonds or Related Series of Substituted Collateral Bonds equal to the
principal amount of such Security shall be satisfied and discharged and such
portion of the principal amount of such Collateral Bonds or Substituted
Collateral Bonds shall cease to secure the Securities in any manner.
SECTION 5.02. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 11.08, all
money deposited with the Trustee pursuant to Section 5.01 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with or
received by the Trustee.
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ARTICLE VI
REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
"EVENT OF DEFAULT," wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or to 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):
(1) the Company defaults in the payment of interest on any Security
when such interest becomes due and payable and, if such default occurs
prior to the Release Date, such default continues for a period of 90 days
or, if such default occurs on or after the Release Date, such default
continues for a period of 30 days; or
(2) the Company defaults in the payment of the principal of (or
premium, if any, on) any Security when the same becomes due and payable at
Maturity, upon redemption (including redemptions under Article Twelve), or
otherwise; or
(3) the Company fails to observe or perform any of its other
covenants, warranties or agreements in the Securities of that series or
this Indenture (other than a covenant, agreement or warranty a default in
whose performance or whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this Indenture solely
for the benefit of series of Securities other than that series), and the
failure to observe or perform continues for the period and after the notice
specified in the last paragraph of this Section; or
(4) prior to the Release Date, a completed default (as defined in the
First Mortgage Indenture under which Collateral Bonds are outstanding) has
occurred and is continuing; PROVIDED, HOWEVER, that anything in this
Indenture to the contrary notwithstanding, the waiver or cure of such
default under the First Mortgage Indenture and the rescission and annulment
of the consequences thereof under the First Mortgage Indenture shall
constitute a waiver of the corresponding Event of Default hereunder and a
rescission and annulment of the consequences thereof hereunder; or
(5) if any Substituted Collateral Bonds are outstanding, an event of
default or completed default (as defined in the Substituted Mortgage
Indenture) has occurred and is continuing; PROVIDED, HOWEVER, that anything
in this Indenture to the contrary notwithstanding, the waiver or cure of
such default under the Substituted Mortgage Indenture and the rescission
and annulment of the consequences thereof under the Substituted Mortgage
Indenture shall constitute a waiver of the corresponding Event of Default
hereunder and a rescission and annulment of the consequences thereof
hereunder; or
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(6) the Company pursuant to or within the meaning of any Bankruptcy
Law (A) commences a voluntary case or proceeding under any Bankruptcy Law
with respect to itself, (B) consents to the entry of a judgment, decree or
order for relief against it in an involuntary case or proceeding under any
Bankruptcy Law, (C) consents to or acquiesces in the institution of
bankruptcy or insolvency proceedings against it, (D) applies for, consents
to or acquiesces in the appointment of or taking possession by a Custodian
of the Company or for any material part of its property, (E) makes a
general assignment for the benefit of its creditors or (F) takes any
corporate action in furtherance of or to facilitate, conditionally or
otherwise, any of the foregoing; or
(7) (i) a court of competent jurisdiction enters a judgment, decree
or order for relief in respect of the Company in an involuntary case or
proceeding under any Bankruptcy Law which shall (A) approve as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition in respect of the Company, (B) appoint a Custodian of the
Company or for any material part of its property or (C) order the
winding-up or liquidation of its affairs, and such judgment, decree or
order shall remain unstayed and in effect for a period of 60 consecutive
days; or (ii) any bankruptcy or insolvency petition or application is
filed, or any bankruptcy or insolvency proceeding is commenced against the
Company and such petition, application or proceeding is not dismissed
within 60 days; or (iii) a warrant of attachment is issued against any
material portion of the property of the Company which is not released
within 60 days of service, or
(8) any other Event of Default provided with respect to Securities of
that series.
A Default under clause (3) above is not an Event of Default until the
Trustee or the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of that series notify the Company of the Default and the
Company does not cure the Default within 90 days after receipt of the notice if
such Default occurs prior to the Release Date or within 60 days after receipt of
the notice if such Default occurs on or after the Release Date. The notice must
specify the Default, demand that it be remedied and state that the notice is a
"Notice of Default." When a Default under clause (3) above is cured within such
90-day period or 60-day period, as applicable, it ceases.
SECTION 6.02. ACCELERATION OF MATURITY AND RESCISSION.
If an Event of Default with respect to Securities of any series (other
than an Event of Default specified in clause (6) or (7) of Section 6.01) occurs
and is continuing, the Trustee by notice in writing to the Company, or the
Holders of at least 25% in aggregate principal amount of the Outstanding
Securities of that series by notice in writing to the Company and the Trustee,
may declare the unpaid principal of and accrued interest to the date of
acceleration (or, if the Securities of that series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of that series) on all the Outstanding Securities of that series to be due
and payable immediately and, upon any such declaration, the Outstanding
Securities of that series (or specified principal amount) shall
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become and be immediately due and payable. In addition, the Trustee shall
immediately file with the Mortgage Trustee a written demand for redemption of
all of the Related Series of Collateral Bonds with respect to such series, to
the extent provided in the applicable provisions of the First Mortgage
Indenture, or, if applicable, a written demand for redemption of all of the
Related Series of Substituted Collateral Bonds with respect to such series,
pursuant to the applicable provisions of the Substituted Mortgage Indenture.
If an Event of Default specified in clause (6) or (7) of Section 6.01
occurs, all unpaid principal of and accrued interest on the Outstanding
Securities of that series (or specified principal amount) shall ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder of any Security of that series. In
addition, the Trustee shall immediately file with the Mortgage Trustee a written
demand for redemption of all Collateral Bonds pursuant to the applicable
provisions of the First Mortgage Indenture or, if applicable, a written demand
for redemption of all Substituted Collateral Bonds pursuant to the applicable
provisions of the Substituted Mortgage Indenture.
Upon payment of all such principal and interest, all of the Company'
obligations under the Securities of that series and (upon payment of the
Securities of all series) this Indenture shall terminate, except obligations
under Section 7.07.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of that series by notice to the Trustee may rescind an
acceleration and its consequences (including, if given, the written demand for
redemption of all Collateral Bonds or, if applicable, all Substituted Collateral
Bonds), if (i) all existing Events of Default, other than the nonpayment of the
principal of and interest on the Securities of that series that has become due
solely by such declaration of acceleration, have been cured or waived, (ii) to
the extent the payment of such interest is lawful, interest on overdue
installments of interest and overdue principal that has become due otherwise
than by such declaration of acceleration have been paid, (iii) the rescission
would not conflict with any judgment or decree of a court of competent
jurisdiction and (iv) all payments due to the Trustee and any predecessor
Trustee under Section 7.07 have been made.
SECTION 6.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if:
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and, (A) if such default occurs
prior to the Release Date, such default continues for a period of 90
days, or, (B) if such default occurs on or after the Release Date, such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at Maturity, upon redemption (including redemption
under Article XII) or otherwise,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest and, to the extent
that payment of such interest shall be legally
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enforceable, interest on any overdue principal (and premium, if any) and on any
overdue interest, at the rate or rates prescribed therefor in such Securities,
and, in addition thereto, such further amount as shall be sufficient to cover
the reasonable costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default hereunder occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights, including its
rights as holder of the Collateral Bonds or the Substituted Collateral Bonds,
and the rights of the Holders of Securities by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power granted herein, or to
secure any other proper remedy.
SECTION 6.04. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the Securities
and to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agent and counsel) and of the Holders allowed in such judicial
proceedings, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
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compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section
7.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 6.05. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 6.06. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article in respect
of the Securities of any series shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, upon
presentation of the Securities in respect of which moneys have been collected
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section
7.07 applicable to such series;
Second: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities of such series
in respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Securities of such series for principal (and premium, if
any) and interest, respectively; and
Third: To the Company.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 6.06. At least fifteen (15) days before such
record date, the Trustee shall mail to each Holder and the Company a notice that
states the record date, the payment date and the amount to be paid.
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SECTION 6.07. LIMITATION ON SUITS.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of Holders of Securities of
any series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other of such Holders, or to obtain or to seek to obtain priority
or preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all Holders of Securities of the affected series.
SECTION 6.08. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 3.07) interest on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
SECTION 6.09. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee
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and the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding has been instituted.
SECTION 6.10. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 3.06, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 6.11. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 6.12. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that:
(1) such direction shall not be in conflict with any rule of law or
with this Indenture;
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; and
(3) subject to Section 7.01, the Trustee need not take any action
which might involve the Trustee in personal liability or be unduly
prejudicial to the Holders not joining therein.
SECTION 6.13. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may by written notice to the Trustee on
behalf of the Holders of all the Securities of such series waive any Default or
Event of Default with respect to such series and its consequences, except a
Default or Event of Default
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(1) in respect of the payment of the principal of (or premium, if
any) or interest on any Security of such series, or
(2) in respect of a covenant or other provision hereof which under
Article Ten cannot be modified or amended without the consent of the Holder
of each Outstanding Security of such series affected.
Upon any such waiver, such Default or Event of Default shall cease to
exist and shall be deemed to have been cured, for every purpose of this
Indenture and the Securities of such series; but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereon.
SECTION 6.14. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest on any Security on or after the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date).
SECTION 6.15. DEFAULTS UNDER FIRST MORTGAGE INDENTURE OR SUBSTITUTED
MORTGAGE INDENTURE.
In addition to every other right and remedy provided herein, the
Trustee may exercise any right or remedy available to the Trustee in its
capacity as owner and holder of Collateral Bonds or Substituted Collateral Bonds
which arises as a result of a default under the First Mortgage Indenture or the
Substituted Mortgage Indenture.
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ARTICLE VII
THE TRUSTEE
SECTION 7.01. CERTAIN DUTIES AND RESPONSIBILITIES OF THE TRUSTEE.
(a) Except during the continuance of an Event of Default, the
Trustee's duties and responsibilities under this Indenture shall be governed by
Section 315 (a) of the Trust Indenture Act.
(b) In case an Event of Default has occurred and is continuing, and
is known to the Trustee, the Trustee shall exercise the rights and powers vested
in it by this Indenture, and shall use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs.
(c) None of the provisions of Section 315 (d) of the Trust Indenture
Act shall be excluded from this Indenture.
SECTION 7.02. NOTICE OF DEFAULTS.
Within 30 days after the occurrence of any Default or Event of Default
with respect to the Securities of any series, the Trustee shall give to all
Holders of Securities of such series, as their names and addresses appear in the
Security Register, notice of such Default or Event of Default known to the
Trustee, unless such Default or Event of Default shall have been cured or
waived; provided, however, that, except in the case of a Default or Event of
Default in the payment of the principal of (or premium, if any) or interest on
any Security of such series or in the payment of any sinking fund installment
with respect to Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
interest of the Holders of Securities of such series.
SECTION 7.03. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, 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) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
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(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel 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;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity to its reasonable satisfaction
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) prior to the occurrence of an Event of Default with respect to
the Securities of any series and after the curing or waiving of all such Events
of Default which may have occurred, the 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 or other paper or document, or the books and records of the
Company, unless requested in writing to do so by the Holders of a majority in
principal amount of the outstanding Securities of any series; provided, however,
that if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is not, in the opinion of the Trustee, reasonably assured to the
Trustee by the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such costs, expenses or
liabilities as a condition to so proceeding; the reasonable expense of every
such investigation shall be paid by the Company or, if paid by the Trustee,
shall be repaid by the Company upon demand;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the 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; and
SECTION 7.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee or any Authenticating Agent assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 7.05. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may
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become the owner or pledgee of Securities and, subject to Sections 7.08 and
7.13, may otherwise deal with the Company with the same rights it would have if
it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or
such other agent.
SECTION 7.06. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder (including amounts held
by the Trustee as Paying Agent) need not be segregated from other funds except
to the extent required by law. The Trustee may allow and credit the Company
interest on any money received by it hereunder at such rate, if any, as may be
agreed upon by the Company and the Trustee from time to time as may be permitted
by law.
SECTION 7.07. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (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 negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability, damage, claim or expense, including taxes (other than
taxes based upon or determined or measured by the income of the Trustee),
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, 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.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 6.01(6) or Section 6.01(7), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section 7.07 shall survive this Indenture.
SECTION 7.08. DISQUALIFICATION; CONFLICTING INTERESTS.
The Trustee shall be disqualified only where such disqualification is
required by Section 310(b) of the Trust Indenture Act, provided that, to the
extent permitted by law,
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Firstar Bank Milwaukee, National Association, shall not be deemed to have a
conflicting interest for purposes of Section 310(b) of the Trust Indenture Act
because of its capacity as trustee under the First Mortgage Indenture or the
Substituted Mortgage Indenture. Nothing shall prevent the Trustee from filing
with the Commission the application referred to in the second to last paragraph
of Section 310(b) of the Trust Indenture Act.
SECTION 7.09. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under Section 310(a) (1) of the Trust Indenture Act
having a combined capital and surplus of at least $50,000,000 subject to
supervision or examination by federal or State authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. Neither the Company nor any Person directly
or indirectly controlling, controlled by, or under common control with the
Company may serve as Trustee. If at any time the Trustee 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.
SECTION 7.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the 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.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a 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, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of the Trust
Indenture Act after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least six
months; or
(2) the Trustee shall cease to be eligible under Section 7.09 and
shall fail to resign after written request therefor by the Company or by
any such Holder of a Security who has been a bona fide Holder of a Security
for at least six months; or
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(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 315(e) of the
Trust Indenture Act, any Holder who has been a bona fide Holder of a Security
for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee with respect to all Securities and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 7.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
7.11, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company with
respect to such Securities. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company or the
Holders and accepted appointment in the manner required by Section 7.11, any
Holder who has been a bona fide Holder of a Security of such series 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
with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by mailing written notice of such event by first-class mail, postage prepaid, to
all Holders of Securities of such series as their names and addresses appear in
the Security Register. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its
Corporate Trust Office.
SECTION 7.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment,
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and thereupon the resignation or removal of the retiring Trustee shall become
effective and 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; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) 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 with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture 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 supplemental indenture 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 supplemental
indenture, 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 with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company 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 paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under the Trust Indenture Act.
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SECTION 7.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation 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. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 7.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent indicated therein.
SECTION 7.14. APPOINTMENT OF AUTHENTICATING AGENT.
At any time when any of the Securities remain Outstanding the Trustee
may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of, and subject to the
direction of, the Trustee to authenticate Securities of such series issued upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 3.06, and Securities so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent 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
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
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Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
Form of Authenticating Agent's
Certificate of Authentication
Dated:
------------------
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
----------------------------------------
As Trustee
By
-------------------------------------
As Authenticating Agent
By
-------------------------------------
Authorized Signatory
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ARTICLE VIII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 8.01. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than January 1 and July 1 in each year,
a list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders as of the preceding December 15 or June 15, as the case
may be; and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
provided, however, that so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
SECTION 8.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 8.01 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 8.02 upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as "applicants")
apply in writing to the Trustee, and furnish to the Trustee reasonable proof
that each such applicant has owned a Security for a period of at least six
months preceding the date of such application, and such application states that
the applicants desire to communicate with other Holders with respect to their
rights under this Indenture or under the Securities and is accompanied by a copy
of the form of proxy or other communication which such applicants propose to
transmit, then the Trustee shall, within five Business Days after the receipt of
such application, at its election, either
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 8.02(a); or
(ii) inform such applicants as to the approximate number of Holders
whose names and addresses appear in the information preserved at the time
by the Trustee in accordance with Section 8.02 (a), and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
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If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder whose name and address appears in the
information preserved at the time by the Trustee in accordance with Section 8.02
(a) a copy of the form of proxy or other communication which is specified in
such request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender the
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interest of the Holders or would be in violation of applicable law. Such
written statement shall specify the basis of such opinion. If the Commission,
after opportunity for a hearing upon the objections specified in the written
statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for hearing,
that all objections so sustained have been met and shall enter an order so
declaring, the Trustee shall mail copies of such material to all such Holders
with reasonable promptness after the entry of such order and the renewal of such
tender; otherwise the Trustee shall be relieved of any obligation or duty to
such applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the company nor the Trustee
nor any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with Section 8.02(b), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 8.02(b).
SECTION 8.03. REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year commencing with the year
1999, the Trustee shall transmit by mail to all Holders of Securities as
provided in Section 313(c) of the Trust Indenture Act, a brief report dated as
of May 15, if required by and in compliance with Section 313(a) of the Trust
Indenture Act.
(b) The Trustee shall from time to time transmit by mail to all
Holders of Securities as provided in Section 313(c) of the Trust Indenture Act
brief reports that comply, both as to content and date of delivery, with Section
313(b) of the Trust Indenture Act (to the extent required by such Section).
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
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SECTION 8.04. REPORTS BY COMPANY.
The Company shall:
(1) file with the Trustee, within 30 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the Exchange
Act; or, if the Company is not required to file information, documents or
reports pursuant to either of said Sections, then it shall file with the
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary
and periodic information, documents and reports which may be required
pursuant to Section 13 of the Exchange Act in respect of a security listed
and registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations;
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (1) and (2) of
this Section as may be required by rules and regulations prescribed from
time to time by the Commission; and
(4) furnish to the Trustee, on or before May 1 of each year, a brief
certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of the
Company's compliance with all conditions and covenants under this
Indenture. For purposes of this paragraph, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture. Such certificate need not comply with
Section 1.02.
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ARTICLE IX
CONSOLIDATION, MERGER, LEASE, SALE OR TRANSFER
SECTION 9.01. THEN COMPANY MAY MERGE, ETC.
The Company shall not consolidate with, or merge with or into any
other corporation (whether or not the Company shall be the surviving
corporation), or sell, assign, transfer or lease all or substantially all of its
properties and assets as an entirety or substantially as an entirety to any
Person or group of affiliated Persons, in one transaction or a series of related
transactions, unless:
(1) either the Company shall be the continuing Person or the Person
(if other than the Company) formed by such consolidation or with which or
into which the Company is merged or the Person (or group of affiliated
Persons) to which all or substantially all the properties and assets of the
Company as an entirety or substantially as an entirety are sold, assigned,
transferred or leased shall be a corporation (or constitute corporations)
and shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, all the
obligations of the Company under the Securities and this Indenture and, if
prior to the Release Date, shall expressly assume, by an indenture
supplemental to the Mortgage Indenture or, if on or after the Release Date,
by an indenture supplemental to any Substituted Mortgage Indenture, all of
the obligations of the Company under any outstanding Collateral Bonds or
Substituted Collateral Bonds and under the Mortgage Indenture or any
Substituted Mortgage Indenture, executed and delivered to the Mortgage
Trustee or the trustee under any Substituted Mortgage Indenture, as the
case may be, in form satisfactory to the Mortgage Trustee or the trustee
under the Substituted Mortgage Indenture; and
(2) immediately before and after giving effect to such transaction or
series of related transactions, no Event of Default, and no Default, shall
have occurred and be continuing.
SECTION 9.02. OPINION OF COUNSEL.
The Company shall deliver to the Trustee prior to the proposed
transaction(s) covered by Section 9.01 an Officer's Certificate and an Opinion
of Counsel stating that the transaction(s) and such supplemental indenture
comply with this Indenture and that all conditions precedent to the consummation
of the transaction(s) under this Indenture have been met.
SECTION 9.03. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation by the Company with or merger by the Company
into any other corporation or any lease, sale, assignment, or transfer of all or
substantially all of the property and assets of the Company in accordance with
Section 9.01, the successor corporation formed by such consolidation or into
which the Company is merged or the
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successor corporation or affiliated group of corporations to which such lease,
sale, assignment, or transfer is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture with
the same effect as if such successor corporation or corporations had been named
as the Company herein, and thereafter, except in the case of a lease, the
predecessor corporation or corporations shall be relieved of all obligations and
covenants under this Indenture and the Securities and in the event of such
conveyance or transfer, except in the case of a lease, any such predecessor
corporation may be dissolved and liquidated.
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ARTICLE X
SUPPLEMENTAL INDENTURES
SECTION 10.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without notice to or the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default with respect to all or
any series of Securities; or
(4) to add or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 3.01; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 7.11(b); or
(8) to cure any ambiguity, defect or inconsistency or to correct or
supplement any provision herein which may be inconsistent with any other
provision herein; or
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(9) to make any change that does not materially adversely affect the
interests of the Holders of Securities of any series.
Upon request of the Company, accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon receipt
by the Trustee of the documents described in (and subject to the last sentence
of) Section 10.03, the Trustee shall join with the Company in the execution of
any supplemental indenture authorized or permitted by the terms of this
Indenture.
SECTION 10.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the written consent of the Holders of a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee
shall, subject to Section 10.03, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof or extend the time for payment thereof,
or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of acceleration
of the Maturity thereof pursuant to Section 6.02, or change any Place of
Payment where, or the coin or currency in which, any Security or any
premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or impair the interest hereunder of the Trustee in the
Collateral Bonds or Substituted Collateral Bonds, or reduce the principal
amount of any issue of Collateral Bonds (except, as provided in this
Indenture, upon the Release Date) or Substituted Collateral Bonds to an
amount less than the principal amount of the Related Series of Securities
or alter the payment provisions of such Collateral Bonds or Substituted
Collateral Bonds in a manner adverse to the Holders of the Securities, in
each case without the consent of the Holder of each Security so affected;
or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver of compliance with certain provisions of this Indenture or
Defaults or Events of Default hereunder and their consequences provided for
in this Indenture; or
(3) change the redemption provisions (including Article Twelve)
hereof in a manner adverse to such Holder; or
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(4) modify any of the provisions of this Section or Section 6.13,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby;
provided, however, that this clause shall not be deemed to require the
consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section, or the deletion of this
proviso, in accordance with the requirements of Sections 7.11(b) and
10.01(7).
A supplemental indenture which changes or eliminates any covenant or other
provisions of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 10.03. EXECUTION OF SUPPLEMENTAL INDENTURES.
The Trustee shall sign any supplemental indenture authorized pursuant
to this Article, subject to the last sentence of this Section 10.03. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 7.01) shall be fully protected in relying upon, an Officer's
Certificate and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 10.04. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 10.05. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 10.06. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental
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indenture. If the Company shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
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ARTICLE XI
COVENANTS
SECTION 11.01. PAYMENTS OF PRINCIPAL AND INTEREST.
With respect to each series of Securities, the Company will duly and
punctually pay the principal of (and premium, if any) and interest on such
Securities in accordance with their terms and this Indenture, and will duly
comply with all the other terms, agreements and conditions contained in, or made
in the Indenture for the benefit of, the Securities of such series.
SECTION 11.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain an office or agency in each Place of Payment
where Securities may be surrendered for registration of transfer or exchange or
for presentation for payment, where notices and demands to or upon the Company
in respect of the Securities and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and any change in
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the address of the Trustee as set forth in Section
1.05.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
Unless otherwise set forth in, or pursuant to, a Board Resolution or
Indenture supplemental hereto with respect to a series of Securities, the
Company hereby initially designates the Corporate Trust Office of Firstar Bank
Milwaukee, National Association, in Milwaukee, Wisconsin, as such office of the
Company.
SECTION 11.03. CORPORATE EXISTENCE.
Subject to Article IX, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the rights (charter and statutory) and franchises of the Company;
provided, however, that the Company shall not be required to preserve any such
right or franchise if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company.
SECTION 11.04. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge, or cause to be paid or discharged,
before the same shall become delinquent, (l) all material taxes, assessments and
governmental charges
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levied or imposed upon the Company or upon the income, profits or property of
the Company, and (2) all lawful claims for labor, materials and supplies which,
if unpaid, might by law become a material lien upon the property of the Company;
provided, however, that the Company shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings and for which adequate provision has been made.
SECTION 11.05. MAINTENANCE OF PROPERTIES.
The Company will cause all material properties used or useful in the
conduct of its business to be maintained and kept in good condition, repair and
working order (normal wear and tear excepted) and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties, or
disposing of any of them, if such discontinuance or disposal is, in the judgment
of the Board of Directors, desirable in the conduct of the business of the
Company.
SECTION 11.06. OPINIONS OF COUNSEL. The Company will cause this
Indenture, any indentures supplemental to this Indenture, and any financing or
continuation statements to be promptly recorded and filed and rerecorded and
refiled in such a manner and in such places, as may be required by law in order
fully to preserve, protect and perfect the security of the Holders and all
rights of the Trustee, and shall deliver to the Trustee:
(a) Promptly after the execution and delivery of this Indenture and
of any indenture supplemental to this Indenture but prior to the Release date,
an Opinion of Counsel either stating that, in the opinion of such counsel, this
Indenture or such supplemental indenture and any financing of continuation
statements have been properly recorded and filed so as to make effective and to
perfect the interest of the Trustee in the Collateral Bonds intended to be
created by this Indenture for the benefit of the Holders from time to time of
the Securities, and reciting the details of such action, or stating that, in the
opinion of such counsel, no such action is necessary to perfect or make such
interest effective and stating what, if any, action of the foregoing character
may reasonably be expected to become necessary prior to the next succeeding
May 1 to maintain, perfect and make such interest effective; and
(b) On or before May 1 of each year, commencing May 1, 1999, and
prior to the Release Date, an Opinion of Counsel either stating that in the
opinion of such counsel such action has been taken, since the date of the most
recent Opinion of Counsel furnished pursuant to this Section 11.06(b) or the
first Opinion of Counsel furnished pursuant to Section 11.06(a) hereof, with
respect to the recording, filing, rerecording, or refiling of this Indenture,
each supplemental indenture and any financing or continuation statements, as is
necessary to maintain and perfect the interest of the Trustee in the Collateral
Bonds intended to be created by this Indenture for the benefit of the Holders
from time to time of the Securities, and
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reciting the details of such action, or stating that in the opinion of such
counsel no such action is necessary to maintain and perfect such interest and
stating what, if any, action of the foregoing character may reasonably be
expected to become necessary prior to the next succeeding May 1 to maintain,
perfect and make such security interest effective.
SECTION 11.07. COMPLIANCE CERTIFICATES.
(a) The Company shall deliver to the Trustee within 90 days after the
end of each fiscal year of the Company (which fiscal year currently ends on
December 31), an Officer's Certificate stating whether or not the signer knows
of any Default or Event of Default by the Company that occurred prior to the end
of the fiscal year and is then continuing. If the signer does know of such a
Default or Event of Default, the certificate shall describe each such Default or
Event of Default and its status and the specific section or sections of this
Indenture in connection with which such Default or Event of Default has
occurred. The Company shall also promptly notify the Trustee in writing should
the Company's fiscal year be changed so that the end thereof is on any date
other than the date on which the Company's fiscal year currently ends. The
certificate need not comply with Section 1.02.
(b) The Company shall deliver to the Trustee, within 10 days after
the occurrence thereof, notice of any default which with the giving of notice
and the lapse of time would be an Event of Default within the meaning of Section
6.01(4) or (5).
(c) The Company shall deliver to the Trustee forthwith upon becoming
aware of a Default or Event of Default (but in no event later than 10 days after
the occurrence of each Default or Event of Default that is continuing), an
Officer's Certificate setting forth the details of such Default or Event of
Default and the action that the Company proposes to take with respect thereto
and the specific section or sections of this Indenture in connection with which
such Default or Event of Default has occurred.
SECTION 11.08. WAIVER OF STAY OR EXTENSION.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim, and will actively resist any and all efforts to be compelled to take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and (to the extent that it may lawfully do so) the Company
hereby expressly waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 11.09. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of that
series, segregate and hold in trust for the
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benefit of the Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of (and
premium, if any) or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure to so act.
The Company will cause each Paying Agent for any series of Securities
(other than the Trustee) to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Securities of that series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal And premium, if any) or interest on the Securities of
that series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Security of any series and remaining unclaimed for two
years after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon
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cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in New York, New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance or such money then remaining will be repaid to the
Company.
SECTION 11.10. RESTRICTIONS ON LIENS.
(a) So long as any Securities are outstanding, the Company will not
issue, assume, guarantee or permit to exist after the Release Date any Debt
secured by any Lien on any Operating Property of the Company, whether owned at
the date of this Indenture or thereafter acquired, without in any such case
effectively securing the outstanding Securities (together with, if the Company
shall so determine, any other Debt of or guaranteed by the Company ranking
equally with, the Securities) equally and ratably with such Debt (but only so
long as such Debt is so secured); PROVIDED, HOWEVER, that the foregoing
restriction shall not apply to Debt secured by any of the following:
(i) Liens on any Operating Property existing at the time of
acquisition thereof (which Liens may also extend to subsequent repairs,
alterations and improvements to such Operating Property);
(ii) Liens on operating property of a corporation existing at the
time such corporation is merged into or consolidated with the Company, or
at the time of a sale, lease, or other disposition of the properties of
such corporation or a division thereof as an entirety or substantially as
an entirety to the Company;
(iii) Liens on Operating Property to secure all or part of the
cost of acquiring, constructing, developing, or substantially repairing,
altering, or improving such property, or to secure indebtedness incurred to
provide funds for any such purpose or for reimbursement of funds previously
expended for any such purpose, provided such Liens are created or assumed
contemporaneously with, or within eighteen (18) months after, such
acquisition or the completion of construction, development, or substantial
repair, alteration or improvement;
(iv) Liens in favor of any State, or any department, agency, or
instrumentality or political subdivision of any State, or for the benefit
of holders of securities issued by any such entity (or providers of credit
enhancement with respect to such securities), to secure any Debt
(including, without limitation, obligations of the Company with respect to
industrial development, pollution control or similar revenue bonds)
incurred for the purpose of financing all or any part of the purchase price
or the cost of constructing, developing, or substantially repairing,
altering, or improving Operating Property of the Company;
(v) Any Lien created by any Substituted Mortgage Indenture
securing Substituted Collateral Bonds;
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(vi) Any extension, renewal or replacement (or successive
extensions, renewals, or replacements), in whole or in part, of any Lien
referred to in the foregoing clauses (i) to (v), inclusive; PROVIDED,
HOWEVER, that the principal amount of Debt secured thereby and not
otherwise authorized by said clauses (i) to (v), inclusive, shall not
exceed the principal amount of Debt, plus any premium or fee payable in
connection with any such extension, renewal, or replacement, so secured at
the time of such extension, renewal, or replacement.
(b) Notwithstanding the provisions of Section 11.10(a), the Company
may issue, assume, or guarantee Debt, or permit to exist after the Release Date
any Debt, in each case, secured by Liens which would otherwise be subject to the
restrictions of Section 11.10(a) up to an aggregate principal amount that,
together with the principal amount of all other Debt of the Company secured by
Liens (other than Liens permitted by Section 11.10(a) that would otherwise be
subject to any of the foregoing restrictions) and the Value of all Sale and
Lease-Back Transactions in existence at such time (other than (i) any Sale and
Lease-Back Transaction that, if such Sale and Lease-Back Transaction had been a
Lien, would have been permitted by Section 11.10(a), (ii) Sale and Lease-Back
Transactions permitted by Section 11.11 because the commitment by or on behalf
of the purchaser was obtained no later than eighteen (18) months after the later
of events described in (i) or (ii) of Section 11.11, and (iii) Sale and
Lease-Back Transactions as to which application of amounts have been made in
accordance with clause (z) of Section 11.11), does not at the time exceed the
greater of ten percent (10%) of Net Tangible Assets or ten percent (10%)
of Capitalization.
(c) If the Company shall issue, assume, or guarantee any Debt secured
by any Lien and if Section 11.10(a) requires that the outstanding Securities be
secured equally and ratably with such Debt, the Company will promptly execute,
at its expense, any instruments necessary to so equally and ratably secure the
outstanding Securities and deliver the same to the Trustee along with:
(ii) An Officers' Certificate stating that the covenant of the
Company contained in Section 11.10(a) has been complied with; and
(iii) An Opinion of Counsel to the effect that the Company has
complied with the covenant contained in Section 11.10(a), and that any
instruments executed by the Company in the performance of such covenant comply
with the requirements of such covenant.
In the event that the Company shall hereafter secure outstanding
Securities equally and ratably with any other obligation or indebtedness
pursuant to the provisions of this Section 11.10, the Company will, upon the
request of the Trustee, enter into an indenture or agreement supplemental hereto
and take such other action, if any, as the Trustee may reasonably request to
enable it to enforce effectively the rights of the Holders of outstanding
Securities so secured, equally and ratably with such other obligation or
indebtedness.
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SECTION 11.11. RESTRICTIONS ON SALE AND LEASE-BACK TRANSACTIONS. So
long as any Securities are outstanding, the Company will not enter into or
permit to exist after the Release Date any Sale and Lease-Back Transaction with
respect to any Operating Property if, in any case, the commitment by or on
behalf of the purchaser is obtained more than eighteen (18) months after the
later of (i) the completion of the acquisition, construction, or development of
such Operating Property or (ii) the placing in operation of such Operating
Property or of such Operating Property as constructed, developed, or
substantially repaired, altered, or improved, unless (x) the Company would be
entitled pursuant to Section 11.10(a) to issue, assume, guarantee or permit to
exist Debt secured by a Lien on such Operating Property without equally and
ratably securing the Securities or (y) the Company would be entitled pursuant to
Section 11.10(b), after giving effect to such Sale and Lease-Back Transaction,
to incur $1.00 of additional Debt secured by Liens (other than Liens permitted
by Section 11.10(a)) or (z) the Company shall apply or cause to be applied, in
the case of a sale or transfer for cash, an amount equal to the net proceeds
thereof (but not in excess of the net book value of such Operating Property at
the date of such sale or transfer) and, in the case of a sale or transfer
otherwise than for cash, an amount equal to the fair value (as determined by the
Board of Directors) of the Operating Property so leased, to the retirement,
within one hundred eighty (180) days after the effective date of such Sale and
Lease-Back Transaction, of Securities (in accordance with their terms) or other
Debt of the Company ranking senior to, or equally with, the Securities;
PROVIDED, HOWEVER, that the amount to be applied to such retirement of Debt
shall be reduced by an amount equal to the principal amount, plus any premium or
fee paid in connection with any redemption in accordance with the terms of Debt
voluntarily retired by the Company within such one hundred eighty (180) day
period, excluding retirement pursuant to mandatory sinking fund or prepayment
provisions and payments at maturity.
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ARTICLE XII
REDEMPTION OF SECURITIES
SECTION 12.01. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.01 for Securities of any
series) in accordance with this Article.
SECTION 12.02. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall, at
least 45 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series to be
redeemed. In the case of any redemption of Securities prior to the expiration
of any restriction on such redemption provided in the terms of such Securities
or elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officer's Certificate evidencing compliance with such restriction.
SECTION 12.03. ELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 90 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, substantially pro rata, by lot
or by any other method as the Trustee considers fair and appropriate and that
complies with the requirements of the principal national securities exchange, if
any, on which such Securities are listed, and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series; provided that
in case the Securities of such series have different terms and maturities, the
Securities to be redeemed shall be selected by the Company and the Company shall
give notice thereof to the Trustee.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of the Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in part,
to the portion of the principal amount of such Securities which has been or is
to be redeemed.
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SECTION 12.04. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 45 days prior to the Redemption
Date, unless otherwise provided in an indenture supplemental hereto, to each
Holder of Securities to be redeemed, at his address appearing in the Security
Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed;
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date;
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price;
(6) that the redemption is for a sinking fund, if such is the case;
(7) the CUSIP number, if any, of the Securities to be redeemed; and
(8) unless otherwise provided as to a particular series of
Securities, if at the time of publication or mailing of any notice of
redemption the Company shall not have deposited with the Trustee or Paying
Agent and/or irrevocably directed the Trustee or Paying Agent to apply,
from money held by it available to be used for the redemption of
Securities, an amount in cash sufficient to redeem all of the Securities
called for redemption, including accrued interest to the Redemption Date,
such notice shall state that it is subject to the receipt of the redemption
moneys by the Trustee or Paying Agent before the Redemption Date (unless
such redemption is mandatory) and such notice shall be of no effect unless
such moneys are so received before such date.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 12.05. DEPOSIT OF REDEMPTION PRICE.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 11.08) an amount of
money sufficient to pay the Redemption
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Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that date.
SECTION 12.06. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Regular or Special Record Dates
according to their terms and the provisions of Section 3.07.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 12.07. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be surrendered
at an office or agency of the Company at a Place of Payment therefor (with, if
the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing), and
the Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series and Stated Maturity, of any authorized denomination as requested
by such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
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ARTICLE XIII
SINKING FUNDS
SECTION 13.01. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series, except as otherwise specified as
contemplated by Section 3.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "MANDATORY SINKING
FUND PAYMENT," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "OPTIONAL
SINKING FUND PAYMENT." If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 13.02. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 13.02. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (1) may deliver Securities of a series (other than any
Securities previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
SECTION 13.03. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officer's
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 13.02 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 12.03 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 12.04. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 12.06 and 12.07.
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ARTICLE XIV
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 14.01. APPLICABILITY OF ARTICLE; COMPANY'S OPTION TO EFFECT
DEFEASANCE OR COVENANT DEFEASANCE.
Unless pursuant to Section 3.01 provision is made for the
inapplicability of either or both of (a) Defeasance of the Securities of a
series under Section 14.02 or (b) Covenant Defeasance of the Securities of a
series under Section 14.03, then the provisions of such Section or Sections, as
the case may be, together with the other provisions of this Article, shall be
applicable to the Securities of such series, and the Company may at its option
by Board Resolution, at any time, with respect to the Securities of such series,
elect to have either Section 14.02 (unless inapplicable) or Section 14.03
(unless inapplicable) be applied to the Outstanding Securities of such series
upon compliance with the applicable conditions set forth below in this Article.
SECTION 14.02. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the option provided in Section 14.01 to
defease the Outstanding Securities of a particular series, the Company shall be
discharged from its obligations with respect to the Outstanding Securities of
such series on the date the applicable conditions set forth in Section 14.04 are
satisfied (hereinafter, "DEFEASANCE"). Defeasance shall mean that the Company
shall be deemed to have paid and discharged the entire indebtedness represented
by the Outstanding Securities of such series and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same); provided, however, that the
following rights, obligations, powers, trusts, duties and immunities shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of Outstanding Securities of such series to receive, solely from the
trust fund provided for in Section 14.04, payments in respect of the principal
of (and premium, if any) and interest on such Securities when such payments are
due, (B) the Company's obligations with respect to such Securities under
Sections 3.04, 3.05, 3.06, 11.02 and 11.09, (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (D) this Article. Subject to
compliance with this Article, the Company may exercise its option with respect
to Defeasance under this Section 14.02 notwithstanding the prior exercise of its
option with respect to Covenant Defeasance under Section 14.03 in regard to the
Securities of such series.
SECTION 14.03. COVENANT DEFEASANCE.
Upon the Company's exercise of the option provided in Section 14.01 to
obtain a Covenant Defeasance with respect to the Outstanding Securities of a
particular series, the Company shall be released from its obligations under this
Indenture (except its obligations under Sections 3.04, 3.05, 3.06, 6.06, 6.09,
7.10, 11.01, 11.02, 11.06, 11.08 and 11.09) with respect to the Outstanding
Securities of such series on and after the date the applicable
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conditions set forth in Section 14.04 are satisfied (hereinafter, "COVENANT
DEFEASANCE"). Covenant Defeasance shall mean that, with respect to the
Outstanding Securities of such series, the Company may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in this Indenture (except its obligations under Sections 3.04, 3.05, 3.06,
6.06, 6.09, 7.10, 11.01, 11.02, 11.06, 11.08 and 11.09), whether directly or
indirectly by reason of any reference elsewhere herein or by reason of any
reference to any other provision herein or in any other document, and such
omission to comply shall not constitute an Event of Default under Section
6.01(3) with respect to Outstanding Securities of such series, and the remainder
of this Indenture and of the Securities of such series shall be unaffected
thereby.
SECTION 14.04. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to Defeasance under Section
14.02 and Covenant Defeasance under Section 14.03 with respect to the
Outstanding Securities of a particular series:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 7.09 who shall agree to comply with the provisions of this
Article applicable to it), under the terms of an irrevocable trust
agreement in form and substance reasonably satisfactory to such Trustee, as
trust funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefit
of the Holders of such Securities, (A) Dollars in an amount, or (B) U.S.
Government Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide,
not later than the due date of any payment, money in an amount, or (C) a
combination thereof, in each case sufficient, after payment of all federal,
state and local taxes or other charges or assessments in respect thereof
payable by the Trustee, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied
by the Trustee (or other qualifying trustee) to pay and discharge, (i) the
principal of (and premium, if any, on) and each installment of principal of
(and premium, if any) and interest on the Outstanding Securities of such
series on the Stated Maturity of such principal or installment of principal
or interest and (ii) any mandatory sinking fund payments or analogous
payments applicable to the Outstanding Securities of such series on the day
on which such payments are due and payable in accordance with the terms of
this Indenture and of such Securities.
(2) No Default or Event of Default with respect to the Securities of
such series shall have occurred and be continuing on the date of such
deposit or shall occur as a result of such deposit, and no Default or Event
of Default under clause (6) or (7) of Section 6.01 shall occur and be
continuing, at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
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(3) Such deposit, Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which it is
bound.
(4) Such Defeasance or Covenant Defeasance shall not cause any
Securities of such series then listed on any national securities exchange
registered under the Exchange Act to be delisted.
(5) In the case of an election with respect to Section 14.02, the
Company shall have delivered to the Trustee either (A) a ruling directed to
the Trustee received from the Internal Revenue Service to the effect that
the Holders of the Outstanding Securities of such series will not recognize
income, gain or loss for federal income tax purposes as a result of such
Defeasance and will be subject to federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such Defeasance had not occurred or (B) an Opinion of Counsel, based on
such ruling or on a change in the applicable federal income tax law since
the date of this Indenture, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of the Outstanding
Securities of such series will not recognize income, gain or loss for
federal income tax purposes as a result of such Defeasance and will be
subject to federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Defeasance had not
occurred.
(6) In the case of an election with respect to Section 14.03, the
Company shall have delivered to the Trustee an Opinion of Counsel or a
ruling directed to the Trustee received from the Internal Revenue Service
to the effect that the Holders of the Outstanding Securities of such series
will not recognize income, gain or loss for federal income tax purposes as
a result of such Covenant Defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the same times as would
have been the case if such Covenant Defeasance had not occurred.
(7) Such Defeasance or Covenant Defeasance shall be effected in
compliance with any additional terms, conditions or limitations which may
be imposed on the Company in connection therewith pursuant to Section 3.01.
(8) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the Defeasance under Section
14.02 or the Covenant Defeasance under Section 14.03 (as the case may be)
have been complied with.
SECTION 14.05. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD
IN TRUST.
Subject to the provisions of the last paragraph of Section 11.08, all
money and Government Obligations (including the proceeds thereof) deposited with
the Trustee (or other qualifying trustee--collectively for purposes of this
Section 14.05, the "Trustee") pursuant to Section 14.04 in respect of the
Outstanding Securities of a particular series shall be held in trust and applied
by the Trustee, in accordance with the provisions of such Securities and this
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Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities of all sums due and to become due
thereon in respect of principal (and premium, if any) and interest, but such
money need not be segregated from other funds except to the extent required by
law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 14.04 or the principal and interest received in
respect thereof, other than any such tax, fee or other charge which by law is
for the account of the Holders of the Outstanding Securities of such series.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver to pay to the Company from time to time upon company Request any
money or Government Obligations held by it as provided in Section 14.04 which,
in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited for
the purpose for which such money or Government Obligations were deposited.
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ARTICLE XV
MISCELLANEOUS
SECTION 15.01. MISCELLANEOUS.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
WISCONSIN PUBLIC SERVICE
CORPORATION
By:
--------------------------------
Name:
Title:
Attest:
--------------------------------
Name:
Title:
FIRSTAR BANK MILWAUKEE, N.A.
NATIONAL ASSOCIATION,
as Trustee
By:
--------------------------------
Name:
Title:
Attest:
--------------------------------
Name:
Title:
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