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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
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Date of Report
(Date of earliest
event reported): December 14, 1998
Wisconsin Public Service Corporation
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(Exact name of registrant as specified in its charter)
Wisconsin 1-3016 39-0715160
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(State or other (Commission File (IRS Employer
jurisdiction of Number) Identification No.)
incorporation)
700 North Adams Street, P.O. Box 19001, Green Bay, WI 54307
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(Address of principal executive offices including zip code)
(920) 433-1466
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(Registrant's telephone number)
Not Applicable
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(Former name or former address, if changed since last report)
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ITEM 5. OTHER EVENTS
(a) UNDERWRITING AGREEMENT. The Registrant has entered into an
underwriting agreement with Salomon Smith Barney Inc., A.G. Edwards & Sons,
Inc. and Legg Mason Wood Walker, Incorporated (the "Underwriting
Agreement") in connection with the offering of Senior Notes, 6.08% Series
due December 1, 2028 (the "Senior Notes"), registered with the Securities
and Exchange Commission on Form S-3 (Reg. No. 333-67979). The Underwriting
Agreement is filed herewith as Exhibit 1.
(b) INDENTURE. The Registrant entered into an Indenture and First
Supplemental Indenture with Firstar Bank Milwaukee, N.A., National
Association, as trustee, in connection with the offering of the Senior
Notes. Copies of the Indenture and First Supplemental Indenture are filed
herewith as Exhibits 4A and 4C, respectively.
(c) THIRTY-THIRD SUPPLEMENTAL INDENTURE. The Registrant has entered
into a Thirty-Third Supplemental Indenture with Firstar Bank Milwaukee,
N.A., National Association, as successor trustee, in connection with the
issuance of the Registrant's First Mortgage Bonds, Collateral Trust A,
which are being pledged as security for the Senior Notes. A copy of the
Thirty-Third Supplemental Indenture is filed herewith as Exhibit 4D.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) EXHIBITS.
1 Underwriting Agreement, dated as of December 14, 1998 between
Wisconsin Public Service Corporation and Salomon Smith Barney
Inc., A.G. Edwards & Sons, Inc. and Legg Mason Wood Walker,
Incorporated.
4A Indenture, dated as of December 1, 1998, between Wisconsin
Public Service Corporation and Firstar Bank Milwaukee, N.A.,
National Association.
4C First Supplemental Indenture, dated as of December 1, 1998
between Wisconsin Public Service Corporation and Firstar Bank
Milwaukee, N.A., National Association.
4D Thirty-Third Supplemental Indenture, dated as of December 1,
1998, between Wisconsin Public Service Corporation and Firstar
Bank Milwaukee, N.A., National Association.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
WISCONSIN PUBLIC SERVICE CORPORATION
By: /s/ Daniel P. Bittner
-----------------------------------
Daniel P. Bittner
Senior Vice President-Finance
Date: December 17, 1998
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EXHIBIT INDEX
1 Underwriting Agreement, dated as of December 14, 1998 between Wisconsin
Public Service Corporation and Salomon Smith Barney Inc., A.G. Edwards &
Sons, Inc. and Legg Mason Wood Walker, Incorporated.
4A Indenture, dated as of December 1, 1998, between Wisconsin Public Service
Corporation and Firstar Bank Milwaukee, N.A., National Association.
4C First Supplemental Indenture, dated as of December 1, 1998 between
Wisconsin Public Service Corporation and Firstar Bank Milwaukee, N.A.,
National Association.
4D Thirty-Third Supplemental Indenture, dated as of December 1, 1998, between
Wisconsin Public Service Corporation and Firstar Bank Milwaukee, N.A.,
National Association.
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Wisconsin Public Service Corporation
6.08% Senior Notes Due December 1, 2028
Form of Underwriting Agreement
New York, New York
December 14, 1998
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Ladies and Gentlemen:
Wisconsin Public Service Corporation, a corporation organized under
the laws of Wisconsin (the "Company"), proposes to sell to the several
underwriters named in Schedule II hereto (the "Underwriters"), for whom you
(the "Representatives") are acting as representatives, the principal amount
of its senior debt securities identified in Schedule I hereto (the "Senior
Notes"), to be issued under an Indenture dated as of December 1, 1998,
between the Company and Firstar Bank Milwaukee, N.A., as trustee (the "Senior
Trustee"), as supplemented by the First Supplemental Indenture dated as of
December 1, 1998, creating the series in which the Senior Notes are to be
issued, a form of which is included as an exhibit to the Registration
Statement (the "Supplemental Indenture to the Senior Indenture"). The term
"Senior Indenture," as used herein, means such Indenture dated as of
December 1, 1998 , as supplemented by the Supplemental Indenture to the
Senior Indenture. To the extent there are no additional Underwriters listed
on Schedule I other than you, the term Representatives as used herein shall
mean you, as Underwriters, and the terms Representatives and Underwriters
shall mean either the singular or plural as the context requires.
Until the Release Date (as defined in the Senior Indenture), the
Senior Notes will be secured as to payment of principal and interest by the
Company's First Mortgage Bonds, Collateral Series A (the "Collateral Bonds"),
issued under and ratably secured by the First Mortgage and Deed of Trust
dated January 1, 1941 between the Company and Firstar Bank Milwaukee, N.A.
(the successor to First Wisconsin Trust Company), as Trustee (the "Mortgage
Trustee"), as amended and supplemented to the Execution Time (as so amended
and supplemented, the "Original Mortgage Indenture") and to be further
supplemented by the Thirty-Third Supplemental Indenture thereto, a form of
which is included in the Registration Statement, creating the Collateral
Bonds (the
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"Supplemental Indenture to the Mortgage Indenture"). The term "Mortgage
Indenture," as used herein, means the Original Mortgage Indenture, as
supplemented by the Supplemental Indenture to the Mortgage Indenture. The
Collateral Bonds will be issued, pledged and delivered to the Senior Trustee
by the Company concurrently with the issue and delivery of the Senior Notes.
Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the Exchange
Act on or before the Effective Date of the Registration Statement or the
issue date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be, deemed to be
incorporated therein by reference. Certain terms used herein are defined in
Section 17 hereof. Capitalized terms used herein and not otherwise defined
have the meaning given such terms in the Senior Indenture.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1.
(a) The Company meets the requirements for use of Form S-3 under
the Act and has prepared and filed with the Commission a registration
statement (the file number of which is set forth in Schedule I hereto)
on Form S-3, including a related basic prospectus, for registration
under the Act of the offering and sale of the Senior Notes. The Company
may have filed one or more amendments thereto, including a Preliminary
Final Prospectus, each of which has previously been furnished to you.
The Company will next file with the Commission one of the following: (1)
after the Effective Date of such registration statement, a final
prospectus supplement relating to the Senior Notes in accordance with
Rules 430A and 424(b), (2) prior to the Effective Date of such
registration statement, an amendment to such registration statement
(including the form of final prospectus supplement), or (3) a final
prospectus in accordance with Rules 415 and 424(b). In the case of
clause (1), the Company has included in such registration statement, as
amended at the Effective Date, all information (other than Rule 430A
Information) required by the Act and the rules thereunder to be included
in such registration statement and the Final Prospectus. As filed, such
final prospectus supplement or such amendment and form of final
prospectus supplement shall contain all Rule 430A Information, together
with all other such required information, and, except to the extent the
Representatives shall agree in writing to a modification, shall be in
all substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other
changes (beyond that contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Company has advised you, prior to
the Execution Time,
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will be included or made therein. The Registration Statement, at the
Execution Time, meets the requirements set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or will,
and when the Final Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date (as defined herein), the Final
Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act, the Exchange Act
and the Trust Indenture Act and the respective rules thereunder; on the
Effective Date and at the Execution Time, the Registration Statement did
not or will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; on the Effective
Date and on the Closing Date the Indenture did or will comply in all
material respects with the applicable requirements of the Trust
Indenture Act and the rules thereunder; and, on the Effective Date, the
Final Prospectus, if not filed pursuant to Rule 424(b), will not, and on
the date of any filing pursuant to Rule 424(b) and on the Closing Date,
the Final Prospectus (together with any supplement thereto) will not,
include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
PROVIDED, HOWEVER, that the Company makes no representations or
warranties as to (i) that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification (Form T-1)
under the Trust Indenture Act of the Trustee or (ii) the information
contained in or omitted from the Registration Statement or the Final
Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Company by or on
behalf of any Underwriter through the Representatives specifically for
inclusion in the Registration Statement or the Final Prospectus (or any
supplement thereto).
(c) The Company has been duly incorporated and is validly existing
as a corporation under the laws of the State of Wisconsin with power and
authority (corporate and other) to own or lease, as the case may be, and
to operate its properties and conduct its business as described in the
Final Prospectus; the Company has not filed Articles of Dissolution with
the Secretary of State of Wisconsin, and no grounds exist for the
Secretary of State of Wisconsin to dissolve such corporation
administratively pursuant to the provisions of the Wisconsin Business
Corporation Law; the Company is duly qualified to do business as a
foreign corporation and is in good standing under the laws of each
jurisdiction which requires such qualification; the Company is a "public
utility company," as such term is defined in the Public Utility Holding
Company Act of 1935, as amended (the "Public Utility Holding Company
Act").
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(d) The Company has no subsidiaries which, either individually or
considered in the aggregate as a single subsidiary, constitute a
"significant subsidiary" as defined in Rule 1-02 of Regulation S-X.
(e) All of the Company's issued and outstanding shares of common
stock are owned, beneficially and of record, by WPS Resources
Corporation, a Wisconsin corporation ("WPSR"); the Company's authorized
preferred stock is as set forth in the Final Prospectus; except as set
forth in the Final Prospectus, no options, warrants or other rights to
purchase, agreements or other obligations to issue, or rights to convert
any obligations into or exchange any securities for, shares of capital
stock or ownership interests of the Company are outstanding.
(f) There is no franchise, contract or other document of a
character required to be described in the Registration Statement or
Final Prospectus, or to be filed as an exhibit thereto, which is not
described or filed as required.
(g) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding obligation
of the Company enforceable in accordance with its terms.
(h) The Senior Indenture has been duly authorized by the Company;
on the Closing Date, the Senior Indenture will have been duly executed
by the Company and, assuming due authorization, execution and delivery
by the Senior Trustee, will be a valid and binding instrument
enforceable against the Company in accordance with its terms, subject,
as to enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium, or other laws affecting creditors' rights
generally from time to time in effect and to general principles of
equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether
considered in a proceeding in equity or at law (the "Bankruptcy
Exceptions"); the Senior Indenture has been duly qualified under the
Trust Indenture Act; the Senior Indenture conforms in all material
respects to the description thereof contained in the Final Prospectus.
(i) The Senior Notes have been duly authorized by the Company; on
the Closing Date, the Senior Notes will have been duly executed by the
Company, and when authenticated in accordance with the provisions of the
Senior Indenture and delivered and paid for by the Underwriters pursuant
to this Agreement, will constitute valid and legally binding obligations
of the Company entitled to the benefits and security provided by the
Senior Indenture and enforceable against the Company in accordance with
their terms, subject, as to enforcement of remedies, to the Bankruptcy
Exceptions; the Senior Notes conform in all material respects to the
description thereof contained in the Final Prospectus.
(j) The Original Mortgage Indenture has been duly authorized,
executed and delivered by the Company; the Supplemental Indenture to the
Mortgage Indenture has been duly authorized by the Company and, on the
Closing Date, will have been duly executed and
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delivered by the Company and, assuming due execution and delivery of the
Supplemental Indenture to the Mortgage Indenture by the Mortgage
Trustee, the Mortgage Indenture will constitute a valid and binding
instrument, enforceable against the Company in accordance with its
terms, except as the same may be limited by the laws of the States of
Wisconsin and Michigan affecting the remedies for the enforcement of the
security provided for therein (which laws do not make such remedies
inadequate for the realization of the benefits of such security) and by
the Bankruptcy Exceptions; the Mortgage Indenture conforms in all
material respects to the description thereof contained in the Final
Prospectus.
(k) The Collateral Bonds have been duly authorized by the Company
and, when duly executed and authenticated in accordance with the
provisions of the Mortgage Indenture and delivered to the Senior Trustee
in the manner provided therein, will have been duly authorized,
executed, authenticated and issued and will constitute valid and legally
binding obligations of the Company, secured by the lien of, and entitled
to the benefits provided by, the Mortgage Indenture, equally and ratably
with all other bonds of the Company duly issued and outstanding under
the Mortgage Indenture, and will be enforceable against the Company in
accordance with their terms, except as the same may be limited by the
laws of the States of Wisconsin and Michigan affecting the remedies for
the enforcement of the security provided for therein (which laws do not
make such remedies inadequate for the realization of the benefits of
such security) and by the Bankruptcy Exceptions; the Collateral Bonds
conform in all material respects to the description thereof contained in
the Final Prospectus.
(l) Each of the Company and its subsidiaries owns or leases all
such properties as are necessary to the conduct of its operations as
presently conducted. The properties of the Company described under Item
2 of the Company's most recent Annual Report on Form 10-K are owned in
fee simple either individually or jointly, as indicated in such annual
report, or are held under valid leases, in each case subject only to the
lien of the Mortgage Indenture and minor imperfections of titles and
encumbrances, if any, which are not substantial in amount, do not
materially detract from the value or marketability of the properties
subject thereto, and do not materially impair the Company's operations.
(m) The Company is not and, after giving effect to the offering
and sale of the Senior Notes and the application of the proceeds thereof
as described in the Final Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940, as amended.
(n) Except for WPSR, no person or corporation which is a "holding
company" or a "subsidiary of a holding company" within the meaning of
such terms as defined in the Public Holding Company Act, directly or
indirectly owns, controls or holds with power to vote 10% or more of the
outstanding voting securities of the Company; WPSR and the Company are
presently exempt from the provisions of the Public Utility Holding
Company Act which would require them to register thereunder.
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(o) The Public Service Commission of Wisconsin has duly authorized
the issuance and sale by the Company of the Senior Notes and the
issuance and pledge of the Collateral Bonds on the terms set forth in
the Final Prospectus and this Agreement, and such authorization is in
force and effect and sufficient for the issuance and sale of the Senior
Notes to the Underwriters and the issuance and pledge of the Collateral
Bonds to the Senior Trustee. No other consent, approval, authorization,
filing with or order of any court or other governmental agency or body
is required in connection with the transactions contemplated herein,
except such as have been obtained under the Act and the Trust Indenture
Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Senior Notes by the Underwriters in the manner contemplated herein and
in the Final Prospectus.
(p) The execution and delivery of the Senior Indenture or the
Supplemental Indenture to the Mortgage Indenture, the issue and sale of
the Senior Notes, the issue and pledge of the Collateral Bonds, the
consummation of any other of the transactions herein contemplated or the
fulfillment of the terms hereof will not conflict with, result in a
breach or violation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its subsidiaries
pursuant to, (i) the charter or by-laws of the Company or any of its
subsidiaries, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which the
Company or any of its subsidiaries is a party or bound or to which its
or their property is subject (other than the lien of the Mortgage
Indenture), or (iii) any statute, law, rule, regulation, judgment, order
or decree applicable to the Company or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or
any of its subsidiaries or any of its or their properties.
(q) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
(r) The consolidated historical financial statements and schedules
of the Company and its consolidated subsidiary included in the Final
Prospectus and the Registration Statement present fairly in all material
respects the financial condition, results of operations and cash flows
of the Company and its subsidiary as of the dates and for the periods
indicated, comply as to form with the applicable accounting requirements
of the Act and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the
periods involved (except as otherwise noted therein). The selected
financial data set forth under the caption "Summary Financial
Information" in the Final Prospectus and Registration Statement fairly
present, on the basis stated in the Final Prospectus and the
Registration Statement, the information included therein.
(s) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or
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their property is pending or, to the best knowledge of the Company,
threatened that (i) could reasonably be expected to have a material
adverse effect on the performance of this Agreement or the consummation
of any of the transactions contemplated hereby or (ii) could reasonably
be expected to have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of
the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Final Prospectus (exclusive of any
supplement thereto).
(t) Neither the Company nor any of its subsidiaries is in
violation or default of (i) any provision of its charter or bylaws, (ii)
the terms of any indenture, contract, lease, mortgage, deed of trust,
note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which it is a party or bound or to
which its property is subject, except for such violations or defaults
which would not, individually or in the aggregate, have a material
adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the
ordinary course of business, or (iii) any statute, law, rule,
regulation, judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or such subsidiary or any of its
properties, as applicable.
(u) Arthur Andersen LLP, who have certified certain financial
statements of the Company and its consolidated subsidiary and delivered
their report with respect to the audited consolidated financial
statements and schedules included in the Final Prospectus, are
independent public accountants with respect to the Company within the
meaning of the Act and the applicable published rules and regulations
thereunder.
(v) The Company has filed all foreign, federal, state and local
tax returns that are required to be filed or has requested extensions
thereof (except in any case in which the failure so to file would not
have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company
and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Final Prospectus (exclusive of any supplement
thereto) and has paid all taxes required to be paid by it and any other
assessment, fine or penalty levied against it, to the extent that any of
the foregoing is due and payable, except for any such assessment, fine
or penalty that is currently being contested in good faith or as would
not have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company
and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Final Prospectus (exclusive of any supplement
thereto).
(w) No labor problem or dispute with the employees of the Company
exists or is threatened or imminent, and the Company is not aware of any
existing or imminent labor
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disturbance by the employees of any of its principal suppliers,
contractors or customers, that could have a material adverse effect on
the condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto).
(x) The Company and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the businesses
in which they are engaged; all policies of insurance and fidelity or
surety bonds insuring the Company or any of its subsidiaries or their
respective businesses, assets, employees, officers and directors are in
full force and effect; the Company and its subsidiaries are in
compliance with the terms of such policies and instruments in all
material respects; and there are no claims by the Company or any of its
subsidiaries under any such policy or instrument as to which any
insurance company is denying liability or defending under a reservation
of rights clause, except for such claims which, if successfully denied,
would not have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company
and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business; neither the Company nor
any such subsidiary has been refused any insurance coverage sought or
applied for; and neither the Company nor any subsidiary has any reason
to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to continue its business at a
cost that would not have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of
the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Final Prospectus (exclusive of any
supplement thereto).
(y) The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct
their respective businesses, and neither the Company nor any subsidiary
has received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of
the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Final Prospectus (exclusive of any
supplement thereto).
(z) The Company and each of its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in
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conformity with generally accepted accounting principles and to maintain
asset accountability; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(aa) The Company has not taken, directly or indirectly, any action
designed to or which has constituted or which might reasonably be
expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Senior Notes.
(bb) The Company and its subsidiaries are (i) in compliance with
any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received and are in
compliance with all permits, licenses or other approvals required of
them under applicable Environmental Laws to conduct their respective
businesses, and (iii) have not received notice of any actual or
potential liability for the investigation or remediation of any disposal
or release of hazardous or toxic substances or wastes, pollutants or
contaminants, except where such non-compliance with Environmental Laws,
failure to receive required permits, licenses or other approvals, or
liability would not, individually or in the aggregate, have a material
adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in
the Final Prospectus (exclusive of any supplement thereto). Except as
set forth in the Final Prospectus, the Company has not been named as a
"potentially responsible party" under the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended, except in
such instances which would not, individually or in the aggregate, have
a material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole.
(cc) In the ordinary course of its business, the Company
periodically reviews the effect of Environmental Laws on the business,
operations and properties of the Company and its subsidiaries, in the
course of which it identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws, or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to
third parties). On the basis of such review, the Company has reasonably
concluded that such associated costs and liabilities would not, singly
or in the aggregate, have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of
the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Final Prospectus (exclusive of any
supplement thereto).
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(dd) Each of the Company and its subsidiaries has fulfilled its
obligations, if any, under the minimum funding standards of Section 302
of the United States Employee Retirement Income Security Act of 1974
("ERISA") and the regulations and published interpretations thereunder
with respect to each "plan" (as defined in Section 3(3) of ERISA and
such regulations and published interpretations) in which employees of
the Company and its subsidiaries are eligible to participate, and each
such plan is in compliance in all material respects with the presently
applicable provisions of ERISA and such regulations and published
interpretations. The Company and its subsidiaries have not incurred any
unpaid liability to the Pension Benefit Guaranty Corporation (other than
for the payment of premiums in the ordinary course) or to any such plan
under Title IV of ERISA.
(ee) The Company and its subsidiaries have implemented a
comprehensive, detailed program to analyze and address the risk that the
computer hardware and software used by it may be unable to recognize and
properly execute date-sensitive functions involving certain dates prior
to and any dates after December 31, 1999, and reasonably believes that
such risk will be remedied on a timely basis without material expense,
except as set forth or contemplated in the Final Prospectus, and will
not have a material adverse effect upon the financial condition and
results of operations of the Company and its subsidiaries, taken as a
whole.
Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Senior Notes shall be deemed a representation and warranty by
the Company, as to matters covered thereby, to each Underwriter.
2. PURCHASE AND SALE. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase
price set forth in Schedule I hereto the principal amount of the Senior Notes
set forth opposite such Underwriter's name in Schedule II hereto.
3. DELIVERY AND PAYMENT. Delivery of and payment for the Senior
Notes shall be made on the date and at the time specified in Schedule I
hereto or at such time on such later date not more than three Business Days
after the foregoing date as the Representatives shall designate, which date
and time may be postponed by agreement between the Representatives and the
Company or as provided in Section 9 hereof (such date and time of delivery
and payment for the Senior Notes being herein called the "Closing Date").
Delivery of the Senior Notes shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the
several Underwriters through the Representatives of the purchase price
thereof to or upon the order of the Company by wire transfer payable in
same-day funds to an account specified by the Company. Delivery of the
Senior Notes shall be made through the facilities of The Depository Trust
Company.
4. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Senior Notes for sale to the public as set
forth in the Final Prospectus.
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5. AGREEMENTS. The Company agrees with the several Underwriters
that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the
offering of the Senior Notes, the Company will not file any amendment of
the Registration Statement or supplement (including the Final Prospectus
or any Preliminary Final Prospectus) to the Basic Prospectus or any Rule
462(b) Registration Statement unless the Company has furnished you a
copy for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. Subject to the
foregoing sentence, if the Registration Statement has become or becomes
effective pursuant to Rule 430A, or filing of the Final Prospectus is
otherwise required under Rule 424(b), the Company will cause the Final
Prospectus, properly completed, and any supplement thereto to be filed
with the Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence satisfactory
to the Representatives of such timely filing. The Company will promptly
advise the Representatives (1) when the Registration Statement, if not
effective at the Execution Time, shall have become effective, (2) when
the Final Prospectus, and any supplement thereto, shall have been filed
(if required) with the Commission pursuant to Rule 424(b) or when any
Rule 462(b) Registration Statement shall have been filed with the
Commission, (3) when, prior to termination of the offering of the Senior
Notes, any amendment to the Registration Statement shall have been filed
or become effective, (4) of any request by the Commission or its staff
for any amendment of the Registration Statement, or any Rule 462(b)
Registration Statement, or for any supplement to the Final Prospectus or
for any additional information, (5) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that
purpose and (6) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Senior Notes for
sale in any jurisdiction or the institution or threatening of any
proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order or the suspension of any
such qualification and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the Senior Notes
is required to be delivered under the Act, any event occurs as a result
of which the Final Prospectus as then supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall
be necessary to amend the Registration Statement or supplement the Final
Prospectus to comply with the Act or the Exchange Act or the respective
rules thereunder, the Company promptly will (1) notify the
Representatives of such event, (2) prepare and file with the Commission,
subject to the second sentence of paragraph (a) of this Section 5, an
amendment or supplement which will correct such statement or omission or
effect such compliance, and (3) supply any supplemented Final Prospectus
to you in such quantities as you may reasonably request.
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(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under
the Act.
(d) The Company will furnish to the Representatives and counsel
for the Underwriters, without charge, copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a
copy of the Registration Statement (without exhibits thereto) and, so
long as delivery of a prospectus by an Underwriter or dealer may be
required by the Act, as many copies of each Preliminary Final Prospectus
and the Final Prospectus and any supplement thereto as the
Representatives may reasonably request. The Company will pay the
expenses of printing or other production of all documents relating to
the offering.
(e) The Company will arrange, if necessary, for the qualification of
the Senior Notes for sale under the laws of such jurisdictions as the
Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the Senior Notes;
provided that in no event shall the Company be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take
any action that would subject it to service of process in suits, other than
those arising out of the offering or sale of the Senior Notes, in any
jurisdiction where it is not now so subject.
(f) Until the Business Day set forth on Schedule I hereto, the
Company will not, without the prior written consent of Salomon Smith
Barney, offer, sell or contract to sell, or otherwise dispose of (or enter
into any transaction which is designed to, or might reasonably be expected
to, result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the Company or
any affiliate of the Company or any person in privity with the Company or
any affiliate of the Company) directly or indirectly, or announce the
offering of, any debt securities issued or guaranteed by the Company (other
than the Senior Notes, commercial paper or other short-term debt).
(g) The Company will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected
to cause or result, under the Exchange Act or otherwise, in stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Senior Notes.
(h) The Company will issue and deliver the Collateral Bonds to the
Senior Trustee as security for the Senior Notes in the manner described in
the Final Prospectus.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the Underwriters to purchase the Senior Notes shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Company made in any certificates pursuant to the
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provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than
(i) 6:00 PM New York City time, on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date, or (ii) 9:30 AM on the Business Day following
the day on which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such date; if
filing of the Final Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b), the Final Prospectus, and any such supplement,
will be filed in the manner and within the time period required by
Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Foley & Lardner,
counsel for the Company, to have furnished to the Representatives their
opinion, dated the Closing Date and addressed to the Representatives, to
the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation under the laws of the State of Wisconsin,
with full corporate power and authority to own or lease, as the case
may be, and to operate its properties and conduct its business as
described in the Final Prospectus, and is duly qualified to do
business as a foreign corporation and is in good standing under the
laws of Michigan; the Company is a "public utility company," as such
term is defined under the Public Utility Holding Company Act.
(ii) All of the Company's issued and outstanding shares of
common stock are owned of record by WPSR; the Company's authorized
preferred stock is as set forth in the Final Prospectus; to the
knowledge of such counsel, except as set forth in the Final
Prospectus, no options, warrants or other rights to purchase,
agreements or other obligations to issue, or rights to convert any
obligations into or exchange any securities for, shares of capital
stock of or ownership interests in the Company are outstanding.
(iii) To the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property, of a
character required to be disclosed in the Registration Statement which
is not adequately disclosed in the Final Prospectus, and there is no
franchise, contract or other document of a character required to be
described in the Registration Statement or Final Prospectus, or to be
filed as an exhibit thereto, which is not described or filed as
required.
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(iv) The Registration Statement has become effective under the
Act; any required filing of the Basic Prospectus, any Preliminary
Final Prospectus and the Final Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); to the knowledge of
such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for that
purpose have been instituted or threatened, and the Registration
Statement and the Final Prospectus (other than the financial
statements and other financial information contained therein, as to
which such counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the Act, the
Exchange Act and the Trust Indenture Act and the respective rules
thereunder; and such counsel has no reason to believe that on the
Effective Date or at the Execution Time the Registration Statement
contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Final Prospectus as
of its date and on the Closing Date included or includes any untrue
statement of a material fact or omitted or omits to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (in each
case, other than the financial statements and other financial
information contained therein, as to which such counsel need express
no opinion).
(v) This Agreement has been duly authorized, executed and
delivered by the Company.
(vi) The Senior Indenture has been duly authorized, executed
and delivered by the Company and constitutes a valid and binding
instrument enforceable against the Company in accordance with its
terms, subject, as to enforcement of remedies, to the Bankruptcy
Exceptions; the Senior Indenture has been duly qualified under the
Trust Indenture Act; the Senior Indenture conforms in all material
respects to the description thereof contained in the Final Prospectus.
(vii) The Senior Notes have been duly authorized by the Company,
and when executed and authenticated in accordance with the provisions
of the Senior Indenture and delivered and paid for by the Underwriters
pursuant to this Agreement, will constitute valid and legally binding
obligations of the Company entitled to the benefits and security
provided by the Senior Indenture and enforceable against the Company
in accordance with their terms, subject, as to enforcement of
remedies, to the Bankruptcy Exceptions; the Senior Notes conform in
all material respects to the description thereof contained in the
Final Prospectus.
(viii) The Mortgage Indenture has been duly authorized, executed
and delivered by the Company and constitutes a valid and binding
instrument, enforceable against the Company in accordance with its
terms, except as the same
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may be limited by the laws of the States of Wisconsin and Michigan
affecting the remedies for the enforcement of the security provided
for therein (which laws do not in such counsel's opinion make such
remedies inadequate for the realization of the benefits of such
security) and by the Bankruptcy Exceptions; the Mortgage Indenture
conforms in all material respects to the description thereof
contained in the Final Prospectus.
(ix) The Collateral Bonds have been duly authorized by the
Company and, when executed and authenticated in accordance with the
provisions of the Mortgage Indenture, and issued, pledged and
delivered to the Senior Trustee pursuant to the Senior Indenture as
security for the Senior Notes, will constitute valid and legally
binding obligations of the Company, secured by the lien of, and
entitled to the benefits provided by, the Mortgage Indenture, equally
and ratably with all other bonds of the Company duly issued and
outstanding under the Mortgage Indenture, and will be enforceable
against the Company in accordance with their terms, except as the same
may be limited by the laws of the States of Wisconsin and Michigan
affecting the remedies for the enforcement of the security provided
for therein (which laws do not in such counsel's opinion make such
remedies inadequate for the realization of the benefits of such
security) and by the Bankruptcy Exceptions; the Collateral Bonds
conform in all material respects to the description thereof contained
in the Final Prospectus.
(x) The Company has good and marketable title to the real
and fixed properties described in the Mortgage Indenture (other
than properties disposed of and released thereunder and lands
described as held only under flowage rights) free and clear of all
liens, charges and encumbrances against the same prior to or on a
parity with the lien of the Mortgage Indenture, except for and
subject only to permissible encumbrances as defined in the Mortgage
Indenture and to such exceptions, defects and qualifications as in
such counsel's opinion do not materially affect the security for
the Collateral Bonds or the Company's title to or its right to use
such properties in the conduct of its business; the Mortgage
Indenture constitutes a valid and direct first lien upon all real
and fixed property and governmental licenses and permits owned by
the Company (including its interests as tenant-in-common), except
property specifically excepted from the Mortgage Indenture by the
terms thereof, subject to no liens or encumbrances prior to or on a
parity with the lien of the Mortgage Indenture, except permissible
encumbrances as defined in the Mortgage Indenture; and the
description in the Mortgage Indenture of said property is adequate
to constitute the Mortgage Indenture a lien thereon. No examination
of title covering rights-of-way for transmission and distribution
lines has been made inasmuch as the Company has been advised that
the expense incident to the obtaining of abstracts or certificates
of title and of examinations in respect thereto would be in excess
of the cost of reacquiring by condemnation or purchase, possession
and use of such parts of such rights-of-way
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as might be held under defective titles, and accordingly, such
opinion does not cover such rights-of-way. Such counsel has
relied on certificates of officers of the Company to the effect
that certain parcels described in the Mortgage Indenture are
rights-of-way and that certain parcels are not required as an
integral part of the Company's properties or are not indispensable
to its operations. All real property hereafter acquired by the
Company and located in counties in which the Mortgage Indenture
shall be of record will, upon acquisition, become subject to the
lien of the Mortgage Indenture, subject, however, to permitted
encumbrances and liens (as defined in the Mortgage Indenture), any
liens existing or placed thereon at acquisition and any liens which
might intervene prior to the filing or recording of the instrument
containing a sufficient legal description confirming of record that
such property is subject to the lien of the Mortgage Indenture,
except as the existence or validity of the lien of the Mortgage
Indenture may be affected by the application of Sections 547 and/or
552 of the U.S. Bankruptcy Code or by analogous provisions of
applicable state insolvency laws.
(xi) The Mortgage Indenture has been duly recorded or filed for
record in each county in the States of Wisconsin and Michigan where
any real properties described in such instrument are located and in
all other places required by law in order to perfect the lien upon the
property described in the Mortgage Indenture.
(xii) The Company has statutory authority, franchises, and
consents free from burdensome restrictions and adequate for the
conduct of the business in which it is engaged as described in the
Final Prospectus, except to the extent that the absence of such
statutory authority or the failure to obtain such franchises or
consents would not, singly or in the aggregate, (A) affect the
security for the Collateral Bonds, or (B) have a material adverse
effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company, whether or not arising from
transactions in the ordinary course of business, except as set forth
or contemplated in the Final Prospectus.
(xiii) The issuance and delivery by the Company of the Collateral
Bonds to the Trustee constitute a sale by the Company of the
Collateral Bonds to the Trustee as of the Closing Date or, if not a
sale, the grant by the Company to the Trustee of a perfected security
interest in the Collateral Bonds for the benefit of the holders of the
Senior Notes.
(xiv) The Company is not and, after giving effect to the
offering and sale of the Senior Notes and the application of the
proceeds thereof as described in the Final Prospectus, will not be an
"investment company" as defined in the Investment Company Act of 1940,
as amended.
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(xv) The Public Service Commission of Wisconsin has duly
authorized the issuance and sale by the Company of the Senior Notes
and the issuance and pledge of the Collateral Bonds on the terms set
forth in the Final Prospectus and this Agreement, and such
authorization is, to the best knowledge of such counsel, in force and
effect and sufficient for the issuance and sale of the Senior Notes to
the Underwriters and the issuance and pledge of the Collateral Bonds
to the Senior Trustee. No consent, approval, authorization, filing
with or order of any court or other governmental agency or body is
required in connection with the transactions contemplated herein,
except such as have been obtained under the Act and the Trust
Indenture Act and such as may be required under the blue sky laws of
any jurisdiction in connection with the purchase and distribution of
the Senior Notes by the Underwriters in the manner contemplated herein
and in the Final Prospectus.
(xvi) The execution and delivery of the Senior Indenture or the
Supplemental Indenture to the Mortgage Indenture, the issuance and
sale of the Senior Notes, the issuance and pledge of the Collateral
Bonds, the consummation of any other of the transactions herein
contemplated or the fulfillment of the terms hereof will not conflict
with, result in a breach or violation of or imposition of any lien,
charge or encumbrance upon any property or assets of the Company
pursuant to, (i) the charter or by-laws of the Company, (ii) the terms
of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument (other than the lien of the Mortgage Indenture)
known to such counsel to which the Company is a party or bound or to
which its property is subject, (iii) any statute, law, rule, or
regulation applicable to the Company, or (iv) any judgment, order or
decree known to such counsel and applicable to the Company of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or
any of its properties.
(xvii) To the knowledge of such counsel, no holders of securities
of the Company have rights to the registration of such securities
under the Registration Statement.
In rendering such opinion, such counsel (A) may rely as to matters
involving the application of laws of any jurisdiction other than the State
of Wisconsin or the Federal laws of the United States, to the extent they
deem proper and specified in such opinion, upon the opinion of other
counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters, (B) may assume, as to matters
of New York law relating to this Agreement, that New York law does not
differ from Wisconsin law in any material respect, and (C) may rely, as to
matters of fact, to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. References to
the Final Prospectus in this paragraph (b) include any supplements thereto
at the Closing Date.
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(c) The Representatives shall have received from Schiff Hardin &
Waite, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Representatives, with respect to the
issuance and sale of the Senior Notes, the issuance and pledge of the
Collateral Bonds, the Senior Indenture, the Mortgage Indenture, the
Registration Statement, the Final Prospectus (together with any supplement
thereto) and other related matters as the Representatives may reasonably
require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the Company,
dated the Closing Date, to the effect that the signers of such certificate
have carefully examined the Registration Statement, the Final Prospectus,
any supplements to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to
the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus
(exclusive of any supplement thereto), there has been no material
adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company, whether or not
arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Final Prospectus (exclusive of
any supplement thereto).
(e) The Company shall have requested and caused Arthur Andersen LLP
to have furnished to the Representatives, at the Execution Time and at the
Closing Date, letters, (which may refer to letters previously delivered to
one or more of the Representatives), dated respectively as of the Execution
Time and as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants within
the meaning of the Act and the Exchange Act and the respective applicable
published rules and regulations thereunder and stating in effect, except as
provided in Schedule I hereto, that:
(i) in their opinion the audited financial statements and
financial statement schedules included or incorporated by reference in
the Registration Statement and the Final Prospectus and reported on by
them comply as to form in all
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material respects with the applicable accounting requirements of the
Act and the Exchange Act and the related published rules and
regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its
subsidiaries; carrying out certain specified procedures (but not an
examination in accordance with generally accepted auditing standards)
which would not necessarily reveal matters of significance with
respect to the comments set forth in such letter; a reading of the
minutes of the meetings of the stockholders and directors of the
Company; and inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the Company and
its subsidiaries as to transactions and events subsequent to December
31, 1997, nothing came to their attention which caused them to believe
that:
(1) any unaudited financial statements included or
incorporated by reference in the Registration Statement and the
Final Prospectus do not comply as to form in all material
respects with applicable accounting requirements of the Act and
with the published rules and regulations of the Commission with
respect to financial statements included or incorporated by
reference in quarterly reports on Form 10-Q under the Exchange
Act; and said unaudited financial statements are not in
conformity with generally accepted accounting principles applied
on a basis substantially consistent with that of the audited
financial statements included or incorporated by reference in the
Registration Statement and the Final Prospectus;
(2) with respect to the period subsequent to September
30, 1998, there were any changes, at a specified date not more
than five days prior to the date of the letter, in the
consolidated long-term debt of the Company or capital stock of
the Company or decreases in consolidated net assets or
stockholders' equity of the Company as compared with the amounts
shown on the September 30, 1998 consolidated balance sheet
included or incorporated by reference in the Registration
Statement and the Final Prospectus, or for the period from
October 1, 1998 to such specified date there were any decreases,
as compared with the corresponding period in the preceding year,
in consolidated operating revenues or in income before
extraordinary items or net income of the Company, except in all
instances for changes or decreases set forth in such letter, in
which case the letter shall be accompanied by an explanation by
the Company as to the significance thereof unless said
explanation is not deemed necessary by the Representatives; or
(3) the information included or incorporated by
reference in the Registration Statement and Final Prospectus in
response to Regulation S-K, Item 301 (Selected Financial Data)
and Item 503(d) (Ratio of Earnings to
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Fixed Charges) is not in conformity with the applicable
disclosure requirements of Regulation S-K; and
(iii) they have performed certain other specified procedures as
a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Final Prospectus and in
Exhibit 12 to the Registration Statement, including the information
set forth under the captions "Summary Financial Information" and
"Ratios of Earnings to Fixed Charges " in the Final Prospectus, the
information included or incorporated by reference in Items 1, 2, 6,
and 7 of the Company's Annual Report on Form 10-K, incorporated by
reference in the Registration Statement and the Final Prospectus, and
the information included in the "Management's Discussion and Analysis
of Financial Condition and Results of Operations" included or
incorporated by reference in the Company's Quarterly Reports on
Form 10-Q, incorporated by reference in the Registration Statement and
the Final Prospectus, agrees with the accounting records of the
Company and its subsidiaries, excluding any questions of legal
interpretation.
References to the Final Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (e) of this Section 6 or
(ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or
properties of the Company and its subsidiaries, taken as a whole, whether
or not arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Final Prospectus (exclusive of any
supplement thereto) the effect of which, in any case referred to in
clause (i) or (ii) above, is so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of the
Senior Notes as contemplated by the Registration Statement (exclusive of
any amendment thereof) and the Final Prospectus (exclusive of any
supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities (including
the Senior Notes) by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act) or any
notice given of any intended or potential decrease in any such rating or of
a possible change in any such rating that does not indicate the direction
of the possible change.
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(h) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents as
the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by
the Representatives. Notice of such cancellation shall be given to the
Company in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Foley & Lardner, counsel for the Company, at 777
East Wisconsin Avenue, Milwaukee, Wisconsin 53202, on the Closing Date, or at
such other place as may be agreed upon by the Company and the Underwriters.
7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the
Senior Notes provided for herein is not consummated because any condition to
the obligations of the Underwriters set forth in Section 6 hereof is not
satisfied, because of any termination pursuant to Section 10 hereof or
because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof other than
by reason of a default by any of the Underwriters, the Company will reimburse
the Underwriters severally through Salomon Smith Barney on demand for all
out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection with the
proposed purchase and sale of the Senior Notes.
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against
any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Act, the Exchange Act
or other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the registration
statement for the registration of the Senior Notes as originally filed or in
any amendment thereof, or in the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, and agrees to reimburse each
such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
21
<PAGE>
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished
to the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers
who signs the Registration Statement, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company to each Underwriter, but
only with reference to written information relating to such Underwriter
furnished to the Company by or on behalf of such Underwriter through the
Representatives specifically for inclusion in the documents referred to in
the foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless
and to the extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party
shall be entitled to appoint counsel of the indemnifying party's choice at
the indemnifying party's expense to represent the indemnified party in any
action for which indemnification is sought (in which case the indemnifying
party shall not thereafter be responsible for the fees and expenses of any
separate counsel retained by the indemnified party or parties except as set
forth below); PROVIDED, HOWEVER, that such counsel shall be satisfactory to
the indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees,
costs and expenses of such separate counsel if (i) the use of counsel chosen
by the indemnifying party to represent the indemnified party would present
such counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it and/or
other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not
have employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action, or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party.
An indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
22
<PAGE>
parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or
(b) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
and one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and by the Underwriters on the other from the offering of the Senior
Notes; PROVIDED, HOWEVER, that in no case shall any Underwriter (except as
may be provided in any agreement among underwriters relating to the offering
of the Senior Notes) be responsible for any amount in excess of the
underwriting discount or commission applicable to the Senior Notes purchased
by such Underwriter hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the
Underwriters severally shall contribute in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault of the
Company on the one hand and of the Underwriters on the other in connection
with the statements or omissions which resulted in such Losses as well as any
other relevant equitable considerations. Benefits received by the Company
shall be deemed to be equal to the total net proceeds from the offering
(before deducting expenses) received by it, and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting discounts
and commissions, in each case as set forth on the cover page of the Final
Prospectus. Relative fault shall be determined by reference to, among other
things, whether any untrue or any alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information provided by the Company on the one hand or the Underwriters on
the other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Company and the Underwriters agree that it would not be just
and equitable if contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 8, each person who controls an Underwriter within
the meaning of either the Act or the Exchange Act and each director, officer,
employee and agent of an Underwriter shall have the same rights to
contribution as such Underwriter, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the Company,
subject in each case to the applicable terms and conditions of this paragraph
(d).
9. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters
shall fail to purchase and pay for any of the Senior Notes agreed to be
purchased by such Underwriter or
23
<PAGE>
Underwriters hereunder and such failure to purchase shall constitute a
default in the performance of its or their obligations under this Agreement,
the remaining Underwriters shall be obligated severally to take up and pay
for (in the respective proportions which the principal amount of Senior Notes
set forth opposite their names in Schedule II hereto bears to the aggregate
principal amount of Senior Notes set forth opposite the names of all the
remaining Underwriters) the Senior Notes which the defaulting Underwriter or
Underwriters agreed but failed to purchase; PROVIDED, HOWEVER, that in the
event that the aggregate principal amount of Senior Notes which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate principal amount of Senior Notes set forth in
Schedule II hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Senior Notes, and if such nondefaulting Underwriters do not purchase all the
Senior Notes, this Agreement will terminate without liability to any
nondefaulting Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date shall be
postponed for such period, not exceeding five Business Days, as the
Representatives shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall
relieve any defaulting Underwriter of its liability, if any, to the Company
and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
10. TERMINATION. This Agreement shall be subject to termination
in the absolute discretion of the Representatives, by notice given to the
Company prior to delivery of and payment for the Senior Notes, if at any time
prior to such time (i) trading in WPSR's common stock shall have been
suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have been suspended
or limited or minimum prices shall have been established on such Exchange,
(ii) a banking moratorium shall have been declared either by Federal, New
York State or Wisconsin authorities or (iii) there shall have occurred any
outbreak or escalation of hostilities, declaration by the United States of a
national emergency or war, or other calamity or crisis the effect of which on
financial markets is such as to make it, in the sole judgment of the
Representatives, impractical or inadvisable to proceed with the offering or
delivery of the Senior Notes as contemplated by the Final Prospectus
(exclusive of any supplement thereto).
11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of
the Company or its officers and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or the Company
or any of the officers, directors or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Senior
Notes. The provisions of Sections 7 and 8 hereof shall survive the
termination or cancellation of this Agreement.
12. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telefaxed to the Salomon Smith Barney General Counsel
(fax no.: (212) 816-7912) and confirmed to the General Counsel, Salomon Smith
Barney, at 388 Greenwich Street, New York, New York, 10013, Attention:
General
24
<PAGE>
Counsel; or, if sent to the Company, will be mailed, delivered or telefaxed
to Ralph G. Baeten, Wisconsin Public Service Corporation (fax no: (920)
433-1693) and confirmed to Wisconsin Public Service Corporation, 700 North
Adams Street, P.O. Box 19001, Green Bay, Wisconsin, 53407, Attention:
Treasurer.
13. SUCCESSORS. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8
hereof, and no other person will have any right or obligation hereunder.
14. APPLICABLE LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
15. COUNTERPARTS. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. HEADINGS. The section headings used herein are for
convenience only and shall not affect the construction hereof.
17. DEFINITIONS. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended and the rules
and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in paragraph
1(a) above contained in the Registration Statement at the Effective Date
including any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City or Milwaukee,
Wisconsin.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any
Rule 462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
25
<PAGE>
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to
the Senior Notes that was first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Senior Notes and the
offering thereof and is used prior to filing of the Final Prospectus,
together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect to the
Senior Notes and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the registration statement referred to in
Section 1(a) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended and the rules and regulations of the Commission promulgated
thereunder.
26
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
Wisconsin Public Service Corporation
By: /s/ Daniel P. Bittner
----------------------------------
Name: Daniel P. Bittner
Title: Senior Vice President-Finance
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
Salomon Smith Barney Inc.
A.G. Edwards & Sons, Inc.
Legg Mason Wood Walker, Incorporated
By: Salomon Smith Barney Inc.
By: /s/ Robert Holloman
----------------------
Name: Robert Holloman
Title: Managing Director
For themselves and the other
several Underwriters, if any,
named in Schedule II to
the foregoing Agreement.
27
<PAGE>
SCHEDULE I
Underwriting Agreement dated December 14, 1998
Registration Statement No. 333-67979
Representative(s): Salomon Smith Barney Inc.
A.G. Edwards & Sons, Inc.
Legg Mason Wood Walker, Incorporated
Title, Purchase Price and Description of Senior Notes:
Title: 6.08% Senior Notes due December 1, 2028
Principal amount: $50,000,000
Purchase price (include
accrued interest or
amortization, if any): $50,168,888.89
Sinking fund provisions: None
Redemption provisions: The Senior Notes will be redeemable at the
option of the Company in whole at any time or
in part from time to time, at a price equal
to the greater of (i) 100% of their principal
amount or (ii) the sum of the present values
of the remaining scheduled payments of
principal and interest thereon discounted to
the date of redemption on a semiannual basis
(assuming a 360-day year consisting of twelve
30-day months) at the Treasury Yield as
defined in the Prospectus Supplement and
Supplemental Senior Indenture for the Senior
Notes plus 20 basis points, plus in each case
accrued interest to the date of redemption.
Other provisions: None other than those substantially in the
form set forth in the forms of Indenture
relating to the Senior Debt Securities and
Supplemental Indenture relating to the Senior
Debt Securities filed as Exhibits 4A and 4C
to the Company's Registration Statement on
Form S-3 (Reg. No. 333-67979)
Closing Date, Time and Location: December 21, 1998 at 10:00 a.m. at the
offices of Foley & Lardner, Milwaukee,
Wisconsin
Type of Offering: Non-delayed
<PAGE>
Date referred to in Section 5(f) after which the Company may offer or sell
debt securities issued or guaranteed by the Company without the consent of
the Representatives: December 21, 1998
Modification of items to be covered by the letter from Arthur Andersen LLP
delivered pursuant to Section 6(e) at the Execution Time: NONE
2
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
Principal Amount
of Senior Notes to
Underwriters be Purchased
- ------------ -------------------
<S> <C>
Salomon Smith Barney Inc. $ 32,500,000
A.G. Edwards & Sons, Inc. 12,500,000
Legg Mason Wood Walker, Incorporated 5,000,000
------------
Total: $ 50,000,000
------------
------------
</TABLE>
<PAGE>
4A
- --------------------------------------------------------------------------------
WISCONSIN PUBLIC SERVICE CORPORATION
AS ISSUER
TO
FIRSTAR BANK MILWAUKEE, N.A., NATIONAL ASSOCIATION
AS TRUSTEE
----------------------
INDENTURE
SENIOR DEBT SECURITIES
DATED AS OF DECEMBER 1, 1998
----------------------
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
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". . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(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" . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(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
-i-
<PAGE>
<CAPTION>
PAGE
<S> <C>
(gg) "HYBRID PREFERRED SECURITIES SUBSIDIARY" . . . . . . . . . . . . . 6
(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" . . . . . . . . . . . . . . . 9
(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" . . . . . . . . . . . . . . . . . . . . . . . . . . .10
(kkk) "SECURITY REGISTER" and "SECURITY REGISTRAR". . . . . . . . . . . 10
(lll) "SPECIAL RECORD DATE" . . . . . . . . . . . . . . . . . . . . . . 10
(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
-ii-
<PAGE>
<CAPTION>
PAGE
<S> <C>
SECTION 1.02. Compliance Certificates and Opinions. . . . . . . . . . . 11
SECTION 1.03. Form of Documents Delivered to Trustee. . . . . . . . . . 12
SECTION 1.04. Acts of Holders.. . . . . . . . . . . . . . . . . . . . . 12
SECTION 1.05. Notices, Etc., to Trustee and Company.. . . . . . . . . . 13
SECTION 1.06. Notice to Holders; Waiver.. . . . . . . . . . . . . . . . 14
SECTION 1.07. Conflict with Trust Indenture Act.. . . . . . . . . . . . 14
SECTION 1.08. Effect of Headings and Table of Contents. . . . . . . . . 15
SECTION 1.09. Successors and Assigns. . . . . . . . . . . . . . . . . . 15
SECTION 1.10. Separability Clause.. . . . . . . . . . . . . . . . . . . 15
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. . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.01. Forms Generally.. . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.02. Form of Face of Security. . . . . . . . . . . . . . . . . 17
SECTION 2.03. Form of Reverse of Security.. . . . . . . . . . . . . . . 20
SECTION 2.04. Form of Trustee's Certificate of Authentication.. . . . . 26
SECTION 2.05. Securities Issuable in the Form of a Global
Security. . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 2.06. CUSIP Number. . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 2.07. Payment of Securities.. . . . . . . . . . . . . . . . . . 28
ARTICLE III THE SECURITIES. . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.01. Amount Unlimited; Issuable in Series. . . . . . . . . . . 30
SECTION 3.02. Denominations.. . . . . . . . . . . . . . . . . . . . . . 32
SECTION 3.03. Execution, Authentication, Delivery and Dating. . . . . . 32
SECTION 3.04. Temporary Securities. . . . . . . . . . . . . . . . . . . 35
SECTION 3.05. Registration, Registration of Transfer and Exchange.. . . 35
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities. . . . . 36
SECTION 3.07. Payment of Interest; Interest Rights Preserved. . . . . . 37
SECTION 3.08. Persons Deemed Owners . . . . . . . . . . . . . . . . . . 38
SECTION 3.09. Cancellation. . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 3.10. Computation of Interest.. . . . . . . . . . . . . . . . . 39
ARTICLE IV COLLATERAL BONDS; PLEDGED SUBSTITUTED COLLATERAL BONDS. . . . . . 40
SECTION 4.01. Delivery and Acceptance of Collateral Bonds . . . . . . . 40
SECTION 4.02. Terms of Collateral Bonds . . . . . . . . . . . . . . . . 40
SECTION 4.03. Collateral Bonds Held by the Trustee. . . . . . . . . . . 40
SECTION 4.04. No Transfer of Collateral Bonds; Exception. . . . . . . . 40
SECTION 4.05. Delivery to the Company of All Collateral Bonds . . . . . 41
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<CAPTION>
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<S> <C>
SECTION 4.06. Further Assurances. . . . . . . . . . . . . . . . . . . . 41
SECTION 4.07. Exchange and Surrender of Collateral Bonds. . . . . . . . 41
SECTION 4.08. Collateral Bonds as Security for Securities;
Application of Payment on Collateral Bonds. . . . . . . . 42
SECTION 4.09. Substituted Collateral Bonds. . . . . . . . . . . . . . . 43
SECTION 4.10. Fair Value Certificate. . . . . . . . . . . . . . . . . . 44
ARTICLE V SATISFACTION AND DISCHARGE. . . . . . . . . . . . . . . . . . . . 46
SECTION 5.01. Satisfaction and Discharge of Indenture.. . . . . . . . . 46
SECTION 5.02. Application of Trust Money. . . . . . . . . . . . . . . . 47
ARTICLE VI REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 6.01. Events of Default.. . . . . . . . . . . . . . . . . . . . 48
SECTION 6.02. Acceleration of Maturity and Rescission.. . . . . . . . . 49
SECTION 6.03. Collection of Indebtedness and Suits for
Enforcement by Trustee. . . . . . . . . . . . . . . . . . 50
SECTION 6.04. Trustee May File Proofs of Claim. . . . . . . . . . . . . 51
SECTION 6.05. Trustee May Enforce Claims Without Possession of
Securities. . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 6.06. Application of Money Collected. . . . . . . . . . . . . . 52
SECTION 6.07. Limitation on Suits.. . . . . . . . . . . . . . . . . . . 53
SECTION 6.08. Unconditional Right of Holders to Receive
Principal, Premium and Interest . . . . . . . . . . . . . 53
SECTION 6.09. Restoration of Rights and Remedies. . . . . . . . . . . . 54
SECTION 6.10. Rights and Remedies Cumulative. . . . . . . . . . . . . . 54
SECTION 6.11. Delay or Omission Not Waiver. . . . . . . . . . . . . . . 54
SECTION 6.12. Control by Holders. . . . . . . . . . . . . . . . . . . . 54
SECTION 6.13. Waiver of Past Defaults.. . . . . . . . . . . . . . . . . 55
SECTION 6.14. Undertaking for Costs.. . . . . . . . . . . . . . . . . . 55
SECTION 6.15. Defaults Under First Mortgage Indenture or
Substituted Mortgage Indenture. . . . . . . . . . . . . . 55
ARTICLE VII THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 7.01. Certain Duties and Responsibilities of the Trustee. . . . 56
SECTION 7.02. Notice of Defaults. . . . . . . . . . . . . . . . . . . . 56
SECTION 7.03. Certain Rights of Trustee.. . . . . . . . . . . . . . . . 56
SECTION 7.04. Not Responsible for Recitals or Issuance of
Securities. . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 7.05. May Hold Securities.. . . . . . . . . . . . . . . . . . . 58
SECTION 7.06. Money Held in Trust.. . . . . . . . . . . . . . . . . . . 58
SECTION 7.07. Compensation and Reimbursement. . . . . . . . . . . . . . 58
SECTION 7.08. Disqualification; Conflicting Interests.. . . . . . . . . 59
SECTION 7.09. Corporate Trustee Required; Eligibility.. . . . . . . . . 59
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<CAPTION>
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<S> <C>
SECTION 7.10. Resignation and Removal; Appointment of
Successor.. . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 7.11. Acceptance of Appointment by Successor. . . . . . . . . . 61
SECTION 7.12. Merger, Conversion, Consolidation or Succession to
Business. . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 7.13. Preferential Collection of Claims Against
Company.. . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 7.14. Appointment of Authenticating Agent.. . . . . . . . . . . 62
ARTICLE VIII HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY . . . . . . . . 65
SECTION 8.01. Company to Furnish Trustee Names and Addresses of
Holders . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 8.02. Preservation of Information; Communications to
Holders . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 8.03. Reports by Trustee. . . . . . . . . . . . . . . . . . . . 66
SECTION 8.04. Reports by Company. . . . . . . . . . . . . . . . . . . . 67
ARTICLE IX CONSOLIDATION, MERGER, LEASE, SALE OR TRANSFER. . . . . . . . . . 68
SECTION 9.01. Then Company May Merge, Etc.. . . . . . . . . . . . . . . 68
SECTION 9.02. Opinion of Counsel. . . . . . . . . . . . . . . . . . . . 68
SECTION 9.03. Successor Corporation Substituted.. . . . . . . . . . . . 68
ARTICLE X SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . 70
SECTION 10.01. Supplemental Indentures Without Consent of Holders. . . . 70
SECTION 10.02. Supplemental Indentures with Consent of Holders.. . . . . 71
SECTION 10.03. Execution of Supplemental Indentures. . . . . . . . . . . 72
SECTION 10.04. Effect of Supplemental Indentures.. . . . . . . . . . . . 72
SECTION 10.05. Conformity with Trust Indenture Act.. . . . . . . . . . . 72
SECTION 10.06. Reference in Securities to Supplemental Indentures. . . . 73
ARTICLE XI COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 11.01. Payments of Principal and Interest. . . . . . . . . . . . 74
SECTION 11.02. Maintenance of Office or Agency.. . . . . . . . . . . . . 74
SECTION 11.03. Corporate Existence.. . . . . . . . . . . . . . . . . . . 74
SECTION 11.04. Payment of Taxes and Other Claims.. . . . . . . . . . . . 75
SECTION 11.05. Maintenance of Properties.. . . . . . . . . . . . . . . . 75
SECTION 11.06. Opinions of Counsel.. . . . . . . . . . . . . . . . . . . 75
SECTION 11.07. Compliance Certificates.. . . . . . . . . . . . . . . . . 76
SECTION 11.08. Waiver of Stay or Extension.. . . . . . . . . . . . . . . 76
SECTION 11.09. Money for Securities Payments to Be Held in Trust.. . . . 77
SECTION 11.10. Restrictions on Liens.. . . . . . . . . . . . . . . . . . 78
SECTION 11.11. Restrictions on Sale and Lease-Back Transactions. . . . . 80
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<CAPTION>
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<S> <C>
ARTICLE XII REDEMPTION OF SECURITIES. . . . . . . . . . . . . . . . . . . . . 81
SECTION 12.01. Applicability of Article. . . . . . . . . . . . . . . . . 81
SECTION 12.02. Election to Redeem; Notice to Trustee.. . . . . . . . . . 81
SECTION 12.03. Election by Trustee of Securities to Be Redeemed. . . . . 81
SECTION 12.04. Notice of Redemption. . . . . . . . . . . . . . . . . . . 82
SECTION 12.05. Deposit of Redemption Price.. . . . . . . . . . . . . . . 82
SECTION 12.06. Securities Payable on Redemption Date.. . . . . . . . . . 83
SECTION 12.07. Securities Redeemed in Part.. . . . . . . . . . . . . . . 83
ARTICLE XIII SINKING FUNDS . . . . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 13.01. Applicability of Article. . . . . . . . . . . . . . . . . 84
SECTION 13.02. Satisfaction of Sinking Fund Payments with
Securities. . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 13.03. Redemption of Securities for Sinking Fund.. . . . . . . . 84
ARTICLE XIV DEFEASANCE AND COVENANT DEFEASANCE. . . . . . . . . . . . . . . . 85
SECTION 14.01. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance. . . . . . . . . 85
SECTION 14.02. Defeasance and Discharge. . . . . . . . . . . . . . . . . 85
SECTION 14.03. Covenant Defeasance.. . . . . . . . . . . . . . . . . . . 85
SECTION 14.04. Conditions to Defeasance or Covenant Defeasance.. . . . . 86
SECTION 14.05. Deposited Money and Government Obligations To Be
Held In Trust . . . . . . . . . . . . . . . . . . . . . . 88
ARTICLE XV MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . 89
SECTION 15.01. Miscellaneous.. . . . . . . . . . . . . . . . . . . . . . 89
</TABLE>
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<PAGE>
WISCONSIN PUBLIC SERVICE CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of December 1, 1998
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
<S> <C>
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
</TABLE>
- -----------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of this Indenture.
-vii-
<PAGE>
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 700 North Adams Street, Green Bay, Wisconsin 54301 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:
<PAGE>
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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<PAGE>
(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.
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<PAGE>
(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 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 1555 North
RiverCenter Drive, Suite 301, 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.
-4-
<PAGE>
(y) "EXCHANGE ACT" means the Securities and Exchange Act of
1934, as amended from time to time, and the rules and regulations promulgated
thereunder.
(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.
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<PAGE>
(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 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 $50,000,000 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
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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 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
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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
(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.
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(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 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.
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(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.
(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
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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
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:
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(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.
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.
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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.
(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,
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(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 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.
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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.
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.
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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 ___________.]
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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
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<PAGE>
for that purpose in ______, in Dollars [if applicable, insert--; provided,
however, that at the 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.]
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<PAGE>
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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<PAGE>
<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year Price
- ---- ----- ---- -----
<S> <C> <C> <C>
</TABLE>
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,
<TABLE>
<CAPTION>
Redemption Price for
Redemption Price Redemption Otherwise
For Redemption Than Through
Through Operation Operation
of the of the Sinking
Year Sinking Fund Fund
---- ----------------- ---------------------
<S> <C> <C>
</TABLE>
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.]
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<PAGE>
[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
-22-
<PAGE>
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.
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<PAGE>
[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.
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<PAGE>
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:
---------------------------------------
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<PAGE>
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 Water Street, New York,
New York), 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
-26-
<PAGE>
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.
(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
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<PAGE>
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.
(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
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<PAGE>
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 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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<PAGE>
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;
-30-
<PAGE>
(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;
(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).
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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.
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,
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(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;
(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;
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(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 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.
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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
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
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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 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
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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 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
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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
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.
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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 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 and in compliance with the applicable provisions of Section
184.04(2) of the Wisconsin Statutes or any successor statutory provision, the
Trustee shall not sell, assign or transfer the Collateral Bonds, whether or
not such sale would be in compliance with the provisions of Section 184.04(2)
of the Wisconsin Statutes or any successor
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statutory provision, 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 and such statute.
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
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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 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
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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.
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.
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(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.
SECTION 4.10. FAIR VALUE CERTIFICATE
(a) Upon the delivery by the Company to the Trustee of
Collateral Bonds pursuant to Section 4.01 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 Bond 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 4.05 or 4.07
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
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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 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
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declaration, the Outstanding Securities of that series (or specified
principal amount) shall 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,
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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 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,
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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 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
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shall mail to each Holder and the Company a notice that states the record
date, the payment date and the amount to be paid.
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.
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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 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.
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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
(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.
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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 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.
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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, Firstar Bank Milwaukee, N.A., 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
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(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
(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.
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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, 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.
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(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.
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
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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.
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:
---------------
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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
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formed by such consolidation or into which the Company is merged or the
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
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(3) change the redemption provisions (including Article Twelve)
hereof in a manner adverse to such Holder; or
(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.
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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 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.
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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 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)
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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 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.
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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 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
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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 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
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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;
(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.
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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.
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
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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.
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
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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 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)
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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).
(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.
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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 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: /s/ Daniel P. Bittner
-------------------------------------
Name: Daniel P. Bittner
Title: Senior Vice President-Finance
Attest:
/s/ Francis J. Kicsar
- -------------------------------------
Name: Francis J. Kicsar
Title: Secretary
FIRSTAR BANK MILWAUKEE, NATIONAL ASSOCIATION,
as Trustee
By: /s/ Amy E. Nolde
-------------------------------------
Name: Amy E. Nolde
Title: Assistant Vice President
Attest:
/s/ Yvonne Siira
- -------------------------------------
Name: Yvonne Siira
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Title: Assistant Secretary
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- -------------------------------------------------------------------------------
FIRST SUPPLEMENTAL INDENTURE
FROM
WISCONSIN PUBLIC SERVICE CORPORATION
TO
FIRSTAR BANK MILWAUKEE, N.A., NATIONAL ASSOCIATION
TRUSTEE
-----------------------
Dated as of December 1, 1998
SUPPLEMENTAL TO INDENTURE
Dated as of December 1, 1998
Senior Debt Securities
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
This FIRST SUPPLEMENTAL INDENTURE is made as of the 1st day of
December, by and between WISCONSIN PUBLIC SERVICE CORPORATION, a corporation
duly organized and existing under the laws of the State of Wisconsin (the
"Company"), and FIRSTAR BANK MILWAUKEE, N.A., NATIONAL ASSOCIATION, a
corporation duly organized and existing under the laws of the United States,
as trustee (the "Trustee").
RECITALS OF THE COMPANY:
WITNESSETH: that
The Company has heretofore executed and delivered its Indenture
(hereinafter referred to as the "Indenture"), made as of December 1, 1998; and
Section 3.1 of the Indenture provides that Securities may be issued
from time to time in series pursuant to a supplemental indenture specifying
the terms of each series of Securities; and
The Company desires to establish a series of Securities to be
designated "Senior Notes, 6.08% Series Due December 1, 2028" (the "Securities
of the Series due 2028"); and
Section 10.1 of the Indenture provides that the Company and the
Trustee may enter into indentures supplemental thereto for the purposes,
among others, of establishing the form or terms of Securities of any series
and adding to the covenants of the Company; and
The execution and delivery of this First Supplemental Indenture
(herein, this "Supplemental Indenture") has been duly authorized by a Board
Resolution;
NOW, THEREFORE, this Supplemental Indenture
WITNESSETH, that, in order to set forth the terms and conditions
upon which Securities of the Series due 2028 are, and are to be,
authenticated, issued and delivered, and in consideration of the sum of one
dollar duly paid to it by the Trustee at the execution of this Supplemental
Indenture, the receipt whereof is hereby acknowledged, the Company covenants
and agrees with the Trustee for the equal and proportionate benefit of the
respective Holders from time to time of such Securities as follows:
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ARTICLE I
RELATION TO INDENTURE; DEFINITIONS
SECTION 1.1.
This Supplemental Indenture constitutes an integral part of the
Indenture.
SECTION 1.2.
For all purposes of this Supplemental Indenture:
(a) Capitalized terms used but not otherwise defined herein shall
have the respective meanings assigned to such terms in the Indenture;
(b) All references herein to Articles and Sections, unless
otherwise specified, refer to the corresponding Articles and Sections of this
Supplemental Indenture; and
(c) The terms "hereof," "herein," "hereby," "hereto," "hereunder,"
and "herewith" refer to this Supplemental Indenture.
ARTICLE II
THE SECURITIES
There is hereby established a series of Securities pursuant to
Section 3.01 of the Indenture as follows:
(a) The title of the Securities of the series hereby established
is "Senior Notes, 6.08% Series Due December 1, 2028."
(b) The aggregate principal amount of the Securities of the Series
due 2028 which may be authenticated and delivered under the Indenture (except
for Securities authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of other Securities of such series pursuant to
Sections 2.05, 3.04, 3.05, 3.06, 10.06 or 12.07) shall be limited to Fifty
Million Dollars ($50,000,000).
(c) The Securities of the Series due 2028 are to be issued in
permanent global form without coupons. The beneficial owners of interests in
such permanent Global Security or Securities may not exchange such interests
for Securities of such series other than in the manner provided in Section
2.05 of the Indenture. The Depositary for the Securities of the Series due
2028 shall be The Depositary Trust Company.
(d) The Stated Maturity of the Securities of the Series due 2028
is December 1, 2028.
(e) The Securities of the Series due 2028 shall bear interest at
the rate of 6.08% per annum and such interest shall accrue from December 1,
1998 (or from the most recent Interest Payment Date to which interest on the
Securities of the Series due 2028 has
2
<PAGE>
been paid or provided for). The Interest Payment Dates for the Securities of
the Series due 2028 shall be June 1 and December 1 in each year commencing
June 1, 1999, and the Regular Record Date for the interest payable on any
Interest Payment Date shall be the fifteenth day (whether or not a Business
Day) preceding such Interest Payment Date.
(f) Principal of and interest on the Securities of the Series due
2028 shall be payable in U.S. Dollars at the Corporate Trust Office of the
Trustee.
(g) The Securities of the Series due 2028 are subject to
redemption in whole at any time or in part from time to time at the option of
the Company at a Redemption Price equal to the greater of (i) 100% of the
principal amount of the Securities of the Series due 2028 to be redeemed or
(ii) the sum of the present values of the remaining scheduled payments of
principal and interest thereon discounted to the Redemption Date on a
semi-annual basis (assuming a 360 day year of twelve 30-day months) at the
treasury yield as hereinafter defined, plus two-tenths of one percent (.20%)
plus in each case accrued interest to the Redemption Date. Such Redemption
Date shall be set forth in an Officers' Certificate delivered to the Trustee
on or before the Redemption Date and upon which the Trustee may conclusively
rely.
For purposes of this paragraph (g):
"Treasury Yield" means, with respect to any Redemption Date, the
rate per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a maturity
comparable to the remaining term of the Notes that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of the Notes. "Independent Investment Banker" means Salomon
Smith Barney Inc. or, if such firm is unwilling or unable to select the
Comparable Treasury Issue, one of the remaining Reference Treasury Dealers
appointed by the Trustee after consultation with the Company.
"Comparable Treasury Price" means, with respect to any Redemption
Date, (i) the average of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) on the
third business day preceding such Redemption Date, as set forth in the daily
statistical release (or any successor release) published by the Federal
Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations for
U.S. Government Securities" or (ii) if such release (or any successor
release) is not published or does not contain such prices on such business
day, (A) the average of the Reference Treasury Dealer Quotations for such
Redemption Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations for such Redemption Date, or (B) if the Trustee
obtains fewer than four such Reference Treasury Dealer Quotations, the
average of all such Quotations. "Reference Treasury Dealer Quotations" means,
with respect to each
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Reference Treasury Dealer and any Redemption Date, the average, as determined
by the Company, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Company by such Reference Treasury Dealer at 5:00 p.m. on the
third business day preceding such Redemption Date.
"Reference Treasury Dealer" means (i) each of Salomon Smith Barney
Inc. ("Salomon") and any other primary U.S. Government securities dealer in
New York City (a "Primary Treasury Dealer") designated by, and not affiliated
with, Salomon, PROVIDED, HOWEVER, that if Salomon or any of its designees
shall cease to be a Primary Treasury Dealer, the Company shall substitute
therefor another Primary Treasury Dealer, and (ii) any other Primary Treasury
Dealer selected by the Company.
(h) The Securities of the Series due 2028 shall not be subject to
any sinking fund and shall not be redeemable at the option of the Holders
thereof.
(i) The Securities of the Series due 2028 shall initially be
issued in whole in the form of one or more Global Securities. If individual
securities of the Series due 2028 are issued under the conditions specified
in Section 2.05 of the Indenture, individual certificates will be issued in
denominations of $1,000 or any integral multiple thereof.
(j) The Related Series of Collateral Bonds being delivered to the
Trustee in connection with the issuance of the Securities of the Series due
2028 is the Company's First Mortgage Bonds, Collateral Series A.
Such Securities shall be initially authenticated and delivered from
time to time upon delivery to the Trustee of the documents required by
Section 3.1 of the Indenture, the form of Securities for the Securities of
the Series due 2028 substantially in the form of Security attached hereto as
Appendix I, which is incorporated herein by reference.
ARTICLE III
TRANSFER OF COLLATERAL BONDS
The Company hereby issues, delivers and transfers to the Trustee in
connection with the issuance of the Securities of the Series due 2028 Fifty
Million Dollars ($50,000,000) aggregate principal amount of a related issue
of Collateral Bonds of the Company designated "First Mortgage Bonds,
Collateral Series A" (each, a "Related Issue," as to the series of Securities
it secures, and, the "Collateral Bonds"), which has been fully registered in
the name of the Trustee in such capacity, to be held in trust for the benefit
of the Holders from time to time of the Related Issue of Securities and, if
such transfer does not constitute a sale of the Collateral Bonds to the
Trustee, the Company hereby grants a perfected security interest in the
Collateral Bonds for the benefit of such Holders, in each case as security
for any and all obligations of the Company under the Indenture, this
Supplemental Indenture and the Related Issue of Securities, including but not
limited to (1) the full and prompt payment of the interest on, principal of,
and premium, if any, on such Related Issue of Securities when and as the same
shall become due and payable in accordance with the terms and provisions of
the
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Indenture and this Supplemental Indenture and such Related Issue of
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 such Related Issue of Securities when and as the same shall
become due and payable in accordance with the terms and provisions of the
Indenture and this Supplemental Indenture and such Related Issue of
Securities. The Trustee shall enforce all of its rights under the First
Mortgage Indenture as a holder of each Related Issue of Collateral Bonds
transferred to it as provided in this Article III for the benefit of the
Holders of the respective Related Issue of Securities and the proceeds of the
enforcement of such rights shall be applied by the Trustee to satisfy the
Company's obligations under the Indenture, this Supplemental Indenture, and
such Related Issue of Securities.
The Company shall make payments of the principal of, and premium or
interest on each of the Collateral Bonds to the Trustee, which payments shall
be applied by the Trustee to satisfaction of all obligations then due on the
respective Related Issue of Securities.
The Collateral Bonds shall not be sold or transferred by the
Trustee until the earlier of the Release Date or the prior retirement of the
Related Issue of Securities through redemption, repurchase or otherwise.
Without limiting the generality of the foregoing, in no event shall the
Collateral Bonds be sold or become the absolute property of any person in
violation of the applicable provisions of Section 182.04(2) of the Wisconsin
Statutes or any successor statutory provision. The "Release Date" shall be
the date that all First Mortgage Bonds of the Company issued and outstanding
under the First Mortgage Indenture, other than the Collateral Bonds, have
been retired (at, before or after the maturity thereof) through payment,
redemption or otherwise, provided that no Default or Event of Default has
occurred and, at such time, is continuing under the Indenture.
A copy of the forms of Collateral Bond is attached hereto as
Appendix II and its terms are hereby incorporated by reference herein.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1.
The Trustee has accepted the amendment of the Indenture effected by
this Supplemental Indenture and agrees to execute the trust created by the
Indenture as hereby amended, but only upon the terms and conditions set forth
in the Indenture, including the terms and provisions defining and limiting
the liabilities and responsibilities of the Trustee, and without limiting the
generality of the foregoing, the Trustee shall not be responsible in any
manner whatsoever for or with respect of any of the recitals or statements
contained herein, all of which recitals or statements are made solely by the
Company, or for or with respect to (a) the validity or sufficiency of this
Supplemental Indenture or any of the terms or provisions hereof, (b) the
proper authorization hereof by the Company by corporate action or otherwise,
and (c) the due execution hereof by the Company.
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SECTION 4.2.
This Supplemental Indenture shall be construed in connection with
and as a part of the Indenture.
SECTION 4.3.
(a) If any provision of this Supplemental Indenture conflicts with
another provision of the Indenture required to be included in indentures
qualified under the Trust Indenture Act of 1939, as amended (as enacted prior
to the date of this Supplemental Indenture), by any of the provisions of
Sections 310 to 317, inclusive, of said act, such required provision shall
control.
(b) In case any one or more of the provisions contained in this
Supplemental Indenture or in the Securities issued hereunder should be
invalid, illegal, or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected, impaired, prejudiced or disturbed thereby.
SECTION 4.4.
Whenever in this Supplemental Indenture either of the parties
hereto is named or referred to, such name or reference shall be deemed to
include the successors or assigns of such party, and all the covenants and
agreements contained in this Supplemental Indenture by or on behalf of the
Company or by or on behalf of the Trustee shall bind and inure to the benefit
of the respective successors and assigns of such parties, whether so
expressed or not.
SECTION 4.5.
(a) This Supplemental Indenture may be simultaneously executed in
several counterparts, and all such counterparts executed and delivered, each
as an original, shall constitute but one and the same instrument.
(b) The descriptive headings of the several Articles of this
Supplemental Indenture were formulated, used and inserted in this
Supplemental Indenture for convenience only and shall not be deemed to affect
the meaning or construction of any of the provisions hereof.
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IN WITNESS WHEREOF, WISCONSIN PUBLIC SERVICE CORPORATION has caused
this Supplemental Indenture to be executed by its Chairman, Chief Executive
Officer, President, Vice Chairman or a Vice President, or any other officer
selected by the Board of Directors, and its corporate seal to be hereunto
affixed, duly attested by its Secretary or an Assistant Secretary, and
FIRSTAR BANK MILWAUKEE, N.A., NATIONAL ASSOCIATION, as Trustee as aforesaid,
has caused this Supplemental Indenture to be executed by one of its
authorized signatories, as of December 1, 1998.
WISCONSIN PUBLIC SERVICE
CORPORATION
By:
/s/ Daniel P Bittner
Name: Daniel P. Bittner
Title: Senior Vice President-Finance
ATTEST:
/s/ Francis J. Kicsar
Secretary
FIRSTAR BANK MILWAUKEE, N.A.,
NATIONAL ASSOCIATION
By: /s/ Amy E. Nolde
Name: Amy E. Nolde
Title: Assistant Vice President
ATTEST:
/s/ Yvonne Siira
Name: Yvonne Siira
Title: Assistant Secretary
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APPENDIX I
CUSIP:
No.
$__________
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 CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY TRUST COMPANY, A NEW YORK CORPORATION (55
WATER STREET, NEW YORK, NEW YORK), TO THE TRUSTEE FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY 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 INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.*
* To be included so long as Security is a Global Security.
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WISCONSIN PUBLIC SERVICE CORPORATION
Senior Note, 6.08% Series Due December 1, 2028
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 Cede & Co., or
registered assigns, the principal sum of Fifty Million Dollars on December 1,
2028 and to pay interest thereon from December 1, 1998 or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually on June 1 and December 1 in each year, commencing June 1,
1999, at the rate of 6.08% per annum, until the principal hereof is paid or
made available for payment and (to the extent that the payment of such
interest shall be legally enforceable) at the rate of 6.08% 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 close of business on the fifteenth calendar day
next preceding such Interest Payment Date (whether or not such day is a
Business Day). 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.
Payment of the principal of (and premium, if any) and any such
interest on this Security will be made at the office or agency of the Trustee
maintained for that purpose, in Milwaukee, Wisconsin, in Dollars, provided,
however, that at the option of the Company payment of interest may be made by
wire transfer of immediately available funds into the account specified by
the Depositary so long as this note is in the form of Global Security and
otherwise 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, Collateral Series A (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 (subsequently succeeded by Firstar Bank Milwaukee,
N.A., National Association), 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
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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
ISSUE OF SECURITIES INITIALLY ISSUED CONTEMPORANEOUSLY WITH SUCH COLLATERAL
BONDS.
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]
- ------------------------
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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
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 $50,000,000.
The Securities of this series are subject to redemption upon not
less than 30 nor more than 45 days' notice by first class mail, in whole at
any time or in part from time to time at the option of the Company at a
Redemption Price equal to the greater of (i) 100% of the principal amount of
the Securities of this series to be redeemed or (ii) the sum of the present
values of the remaining scheduled payments of principal and interest thereon
discounted to the Redemption Date on a semiannual basis (assuming a 360 day
year consisting of twelve 30-day months) at the Treasury Yield (as defined in
the First Supplemental Indenture to the Indenture) plus two-tenths of one
percent (.20%), plus in each case accrued and unpaid interest to the
Redemption Date.
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.
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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. 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 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 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 $1,000 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.
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<PAGE>
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. 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.
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.
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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:_______________________________________
14
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APPENDIX II
Principal Amount
No. R- $___________
(Form of Bond of Collateral Series A)
WISCONSIN PUBLIC SERVICE CORPORATION
(Incorporated under the laws of the State of Wisconsin)
First Mortgage Bond, Collateral Series A
THE FIRST MORTGAGE BONDS, COLLATERAL SERIES A (HEREINAFTER, "COLLATERAL
BONDS"), REPRESENTED BY THIS CERTIFICATE ARE BEING ISSUED AND DELIVERED BY
THE COMPANY TO FIRSTAR BANK MILWAUKEE, N.A., NATIONAL ASSOCIATION AS TRUSTEE
(IN SUCH CAPACITY, THE "SENIOR TRUSTEE") UNDER AN INDENTURE, DATED AS OF
DECEMBER 1, 1998, BETWEEN THE COMPANY AND THE SENIOR TRUSTEE, AS SUPPLEMENTED
BY THE FIRST SUPPLEMENTAL INDENTURE THERETO DATED AS OF DECEMBER 1, 1998 (AS
SO SUPPLEMENTED, THE "SENIOR INDENTURE"). THE COLLATERAL BONDS ARE TO BE
HELD IN TRUST AS COLLATERAL FOR THE BENEFIT OF THE HOLDERS OF $50,000,000
AGGREGATE PRINCIPAL AMOUNT OF SENIOR NOTES, 6.08% SERIES DUE DECEMBER 1, 2028
(THE "RELATED SECURITIES") ISSUED PURSUANT TO THE SENIOR INDENTURE.
THE COLLATERAL BONDS MAY NOT BE SOLD OR OTHERWISE TRANSFERRED (EXCEPT TO A
SUCCESSOR SENIOR TRUSTEE) UNTIL THE EARLIER OF THE RELEASE DATE (AS DEFINED
BELOW) OR THE PRIOR RETIREMENT OF THE RELATED SECURITIES THROUGH REDEMPTION,
REPURCHASE OR OTHERWISE.
THE COMPANY SHALL MAKE PAYMENTS OF THE PRINCIPAL OF, AND PREMIUM, IF ANY, AND
INTEREST ON, THE COLLATERAL BONDS, TO THE SENIOR TRUSTEE, WHICH PAYMENTS
SHALL BE APPLIED BY THE SENIOR TRUSTEE TO THE SATISFACTION OF OBLIGATIONS ON
THE RELATED SECURITIES.
THE MATURITY DATE SPECIFIED ABOVE IS ALSO THE MATURITY DATE OF THE RELATED
NOTES.
WISCONSIN PUBLIC SERVICE CORPORATION, a corporation organized and
existing under the laws of the State of Wisconsin (hereinafter called the
Company), for value received,
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hereby promises to pay to FIRSTAR BANK MILWAUKEE, N.A., NATIONAL ASSOCIATION,
as trustee for the benefit of the holders of Related Securities, or
registered assigns (in such capacity, the "Senior Trustee"), on the 1st day
of December, 2028, the sum of _____________________ DOLLARS ($___________) in
lawful money of the United States of America, and to pay interest thereon
from the date hereof at the rate of six and eight hundredths per cent (6.08%)
per annum, in like money, until the principal hereof becomes due and payable,
said interest being payable on the 1st day of June and on the 1st day of
December in each year commencing June 1, 1999. The principal and interest so
payable on any June 1 or December 1 will be paid to the person or entity in
whose name this bond is registered, at the address thereof as it appears on
the Company's books for registration and registration of transfer.
The provisions of this bond are continued on the reverse hereof or
attached pages and such continued provisions shall for all purposes have the
same effect as though fully set forth at this place.
This bond shall not be valid or become obligatory for any purpose
unless and until Firstar Bank Milwaukee, N.A., National Association
(successor to First Wisconsin Trust Company), as Trustee under the Indenture,
or its successors thereunder, shall have signed the certificate of
authentication endorsed hereon.
IN WITNESS WHEREOF, WISCONSIN PUBLIC SERVICE CORPORATION has caused
this bond to be signed in its name by the manual or facsimile signature of
its President or a Vice President and its corporate seal or a facsimile
thereof to be hereto affixed and attested by the manual or facsimile
signature of its Secretary or an Assistant Secretary.
Dated as of:
WISCONSIN PUBLIC SERVICE CORPORATION,
By:
______ President
Attest:
_____________________________
____________ Secretary
16
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(FORM OF TRUSTEE'S CERTIFICATE)
This bond is one of the bonds of the series designated therein,
described in the within mentioned Indenture and Supplemental Indenture.
FIRSTAR BANK MILWAUKEE, N.A.,
NATIONAL ASSOCIATION,
As Trustee
By:
--------------------------------
Authorized Signature
(TEXT APPEARING ON REVERSE SIDE OF BOND OR ATTACHED PAGES)
This bond is one of a duly authorized issue of bonds of the
Company, known as its First Mortgage Bonds, of the Series and designation
indicated on the face hereof, which issue of bonds consists, or may consist,
of several series of varying denominations, dates and tenors, all issued and
to be issued under and equally secured (except in so far as a sinking fund,
or similar fund, established in accordance with the provisions of the
Indenture, may afford additional security for the bonds of any specific
series) by a First Mortgage and Deed of Trust (herein called the "Indenture")
dated as of January 1, 1941, executed by the Company to First Wisconsin Trust
Company (subsequently succeeded by Firstar Bank Milwaukee, N.A., National
Association, herein called the Trustee), as Trustee, to which Indenture and
all instruments supplemental thereto reference is hereby made for a
description of the property mortgaged and pledged, the nature and extent of
the security, the rights of the holders of the bonds as to such security, and
the terms and conditions upon which the bonds may be issued under the
Indenture and any instruments supplemental thereto and are secured. The
principal hereof may be declared or may become due on the conditions, in the
manner and at the time set forth in the Indenture, upon the happening of a
completed default as in the Indenture provided. This bond is one of a series
created by a Supplemental Indenture (herein called the "Supplemental
Indenture") dated as of December 1, 1998, between the Company and the
Trustee, which is supplemental to the Indenture.
The Senior Trustee has agreed pursuant to the Senior Indenture to
hold the Bonds of this Series as collateral for the benefit of the holders of
the Related Securities under all circumstances and not to transfer (except to
a successor trustee) such Bonds until the earlier of the Release Date or the
prior retirement of the Related Securities through redemption, repurchase or
otherwise. "Release Date" means the date on which all First Mortgage Bonds
of the Company issued and outstanding under the Indenture, other than the
Bonds of this Series and other Bonds pledged as security for Securities
issued under the Senior Indenture (collectively "Collateral Bonds"), have
been retired (at, before or after the maturity thereof)
17
<PAGE>
through payment, redemption or otherwise provided that no default or event of
default has occurred and is continuing under the Senior Indenture. On the
Release Date, the Senior Trustee shall deliver to the Company for
cancellation all Collateral Bonds, and the Company shall cause the Senior
Trustee to provide notice to all holders of Related Securities of the
occurrence of the Release Date. As a result, on the Release Date, the Bonds
of this Series shall cease to secure the Related Securities. Following the
Release Date, the Company shall cause the Indenture to be discharged, and the
Company shall not issue any additional Collateral Bonds thereunder, and from
and after the Release Date, the Company's obligations in respect of the
Collateral Bonds shall be satisfied and discharged.
With the consent of the Company and to the extent permitted by and
as provided in the Indenture and/or any instruments supplemental thereto, the
rights and obligations of the Company and/or of the holders of the bonds,
and/or terms and provisions of the Indenture and/or of any instruments
supplemental thereto may be modified or altered by consent of the holders of
at least seventy percent (70%) in principal amount of the bonds then
outstanding under the Indenture and any instruments supplemental thereto
(excluding bonds challenged and disqualified from voting by reason of the
interest of the Company or of certain related persons therein as provided in
the Indenture); provided that no such modification or alteration shall permit
the extension of the maturity of the principal of this bond or the reduction
in the rate of interest hereon or any other modification in the terms of
payment of such principal or interest or the taking of certain other action
as more fully set forth in the Indenture without the consent of the holder
hereof.
The Company and the Trustee may deem and treat the person in whose
name this bond is registered as the absolute owner hereof for the purpose of
receiving payment of or on account of the principal hereof and interest
hereon and for all other purposes, and shall not be affected by any notice to
the contrary.
The bonds of this Series are subject to redemption, prior to
maturity, at the option of the Company in whole at any time or in part from
time to time, upon payment of a redemption price equal to the greater of (i)
100% of the principal amount of the bonds to be redeemed or (ii) the sum of
the present values of the remaining scheduled payments of principal and
interest thereon discounted to the redemption date on a semiannual basis
(assuming a 360 day year consisting of twelve 30-day months) at the Treasury
Yield (as defined in the Supplemental Indenture) plus two-tenths of one
percent (.20%), plus in each case accrued interest thereon to the redemption
date, all subject to the conditions and as more fully set forth in the
Indenture and the Supplemental Indenture.
Notice of any such redemption shall be hand delivered or mailed not
less than thirty (30) days prior to the redemption date to the registered
owner of the bonds so to be redeemed, at its address as the same shall appear
on the Company's books for registration and registration of transfer, all
subject to the conditions and as more fully set forth in the Indenture and in
the Supplemental Indenture, except that no newspaper publication shall be
required.
18
<PAGE>
In the event that an event of default under Section 6.01 of the
Senior Indenture has occurred and is continuing, and the Senior Trustee has
declared the principal of all of the Related Securities then outstanding
immediately due and payable (or such principal has become ipso facto
immediately due and payable) under Section 6.02 of the Senior Indenture, then
the Company shall call for redemption and redeem all of the bonds of this
series then outstanding at a price equal to 100% of the principal amount
thereof, together with accrued interest thereon to the redemption date. The
redemption date shall be the accelerated maturity date of the Related
Securities, and no prior notice of such redemption to the Trustee or the
Senior Trustee shall be required.
This bond is nontransferable except to the Senior Trustee and
successor trustees thereto. To the extent that it is transferable, it is
transferable by the registered owner hereof in person or by attorney duly
authorized in writing, on books of the Company to be kept for that purpose at
the principal office of the Trustee at Milwaukee, Wisconsin, upon surrender
hereof for cancellation at said office and upon presentation of a written
instrument of transfer duly executed. Thereupon the Company shall issue in
the name of the transferee, and the Trustee shall authenticate and deliver, a
new registered bond or bonds without coupons of the same maturity and
interest rate and of equal aggregate principal amount. Any such transfer
shall be subject to the terms and conditions specified in the Indenture and
the Supplemental Indenture.
No recourse shall be had for the payment of principal of, premium,
if any, or interest on this bond, or any part thereof, or of any claim based
hereon or in respect hereof or of the Indenture or any instrument
supplemental thereto, against any incorporator, or any past, present or
future stockholder, officer or director of the Company or of any predecessor
or successor corporation, either directly or through the Company, or through
any such predecessor or successor corporation, or through any receiver or a
trustee in bankruptcy, whether by virtue of any constitution, statute or rule
of law or by the enforcement of any assessment or penalty or otherwise, all
such liability being, by the acceptance hereof and as a part of the
consideration for the issue hereof, expressly waived and released, as more
fully provided in the Indenture.
(END OF TEXT OF BOND)
19
<PAGE>
4D
THIRTY-THIRD
SUPPLEMENTAL INDENTURE
FROM
WISCONSIN PUBLIC SERVICE
CORPORATION
TO
FIRSTAR BANK MILWAUKEE, N.A., NATIONAL ASSOCIATION
(SUCCESSOR TO FIRSTAR TRUST COMPANY,
FORMERLY KNOWN AS FIRST WISCONSIN TRUST COMPANY)
TRUSTEE
-----------------
DATED AS OF DECEMBER 1, 1998
-----------------
SUPPLEMENTAL
TO
FIRST MORTGAGE AND DEED OF TRUST
DATED AS OF JANUARY 1, 1941
<PAGE>
WISCONSIN PUBLIC SERVICE CORPORATION
THIRTY-THIRD SUPPLEMENTAL INDENTURE
Dated as of December 1, 1998
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Form of Bond of Collateral Series A . . . . . . . . . . . . . . . . . . . . . 3
Form of Trustee's Certificate . . . . . . . . . . . . . . . . . . . . . . . . 5
Form of Prepayment Record . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Further Recitals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE I
FORM OF EXECUTION OF BONDS OF NEW SERIES
Sec. 1.01 Terms of bonds of new series . . . . . . . . . . . . . . . . . 9
Sec. 1.02 Limitation of new series to $50,000,000. . . . . . . . . . . . 9
Sec. 1.03 Optional redemption of bonds of new series by Company. . . . . 9
Sec. 1.04 Notice of, and selection of bonds of new series for,
redemption . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Sec. 1.05 Redemption in event of default under section 6.01 of the
Senior Indenture . . . . . . . . . . . . . . . . . . . . . . . 11
Sec. 1.06 Partial redemption and payments of redemption price without
presentation of bonds and new series . . . . . . . . . . . . . 11
Sec. 1.07 Company not obligated to make any transfer of bonds of new
series for fifteen days before any interest payment date . . . 12
Sec. 1.08 Charges for transfer of bonds of new series. . . . . . . . . . 12
Sec. 1.09 Bonds of new series may be signed by facsimile signatures of
Company officers . . . . . . . . . . . . . . . . . . . . . . . 12
Sec. 1.10 Payment dates falling on Saturday, Sunday or legal
holiday. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Sec. 1.11 Bonds of new series redeemed or paid not reissuable, but may
be basis for issuance of bonds of different series,
credits or cash withdrawals. . . . . . . . . . . . . . . . . . 12
ARTICLE II
CONFIRMATION OF LIEN
Sec. 2.01 Granting clauses and habendum. . . . . . . . . . . . . . . . . 12
i
<PAGE>
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
Sec. 3.01 Duly authorized by law to execute and deliver Supplemental
Indenture and issue bonds. . . . . . . . . . . . . . . . . . . 13
Sec. 3.02 Covenant of lawful possession, right to mortgage
property and to maintain lien of Indenture.. . . . . . . . . . 13
Sec. 3.03 Payment of principal and interest. . . . . . . . . . . . . . . 13
Sec. 3.04 Nonliability of Trustee. . . . . . . . . . . . . . . . . . . . 14
ARTICLE IV
MISCELLANEOUS
Sec. 4.01 Recitals not made by Trustee. No representations made by
Trustee. Trust accepted subject to terms and conditions of
Indenture. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Sec. 4.02 Supplemental Indenture to be construed as part of Indenture. . 14
Sec. 4.03(a) References to either party to Supplemental Indenture
includes successors or assigns . . . . . . . . . . . . . . . . 14
(b) Table of contents and descriptive headings of articles not
to affect meaning. . . . . . . . . . . . . . . . . . . . . . . 14
Sec. 4.04(a) Trust Indenture Act requirements control . . . . . . . . . . . 14
(b) Severability of Supplemental Indenture provisions and
bond provisions. . . . . . . . . . . . . . . . . . . . . . . . 14
Sec. 4.05 Provisions for execution in counterparts . . . . . . . . . . . 15
Sec. 4.06 Supplemental Indenture effective on execution and
delivery . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Sec. 4.07 Names and addresses of debtor and secured party. . . . . . . . 15
</TABLE>
ii
<PAGE>
THIRTY-THIRD SUPPLEMENTAL INDENTURE, made as of the 1st day of
December, 1998, by and between WISCONSIN PUBLIC SERVICE CORPORATION, a
corporation duly organized and existing under and by virtue of the laws of
the State of Wisconsin, having its principal office in the City of Green Bay
in said State (hereinafter sometimes called the "Company"), party of the
first part, and FIRSTAR BANK MILWAUKEE, N.A., NATIONAL ASSOCIATION (successor
to Firstar Trust Company, formerly known as First Wisconsin Trust Company), a
national banking association duly organized and existing under and by virtue
of the laws of the United States, having its principal office in the City of
Milwaukee in the State of Wisconsin, as Trustee (hereinafter sometimes called
the "Trustee"), party of the second part.
WHEREAS, the Company has heretofore executed and delivered to the
predecessor of the Trustee its First Mortgage and Deed of Trust made as of
January 1, 1941 (hereinafter referred to as the "1941 Mortgage") and has
heretofore executed and delivered to the predecessor of the Trustee
supplemental indentures dated and hereinafter referred to as follows:
<TABLE>
<CAPTION>
SUPPLEMENTAL INDENTURE
DATED (AS OF) HEREINAFTER REFERRED TO AS
---------------------- --------------------------
<S> <C>
November 1, 1947 . . . . . . . . . . First Supplemental Indenture*
August 1, 1948 . . . . . . . . . . . Second Supplemental Indenture
September 1, 1949. . . . . . . . . . Third Supplemental Indenture
November 1, 1950 . . . . . . . . . . Fourth Supplemental Indenture*
May 1, 1953. . . . . . . . . . . . . Fifth Supplemental Indenture*
January 1, 1954. . . . . . . . . . . Sixth Supplemental Indenture
October 1, 1954. . . . . . . . . . . Seventh Supplemental Indenture
December 1, 1957 . . . . . . . . . . Eighth Supplemental Indenture
November 1, 1959 . . . . . . . . . . Ninth Supplemental Indenture
October 1, 1963. . . . . . . . . . . Tenth Supplemental Indenture
June 1, 1964 . . . . . . . . . . . . Eleventh Supplemental Indenture
November 1, 1967 . . . . . . . . . . Twelfth Supplemental Indenture
April 1, 1969. . . . . . . . . . . . Thirteenth Supplemental Indenture
August 1, 1970 . . . . . . . . . . . Fourteenth Supplemental Indenture
May 1, 1971. . . . . . . . . . . . . Fifteenth Supplemental Indenture
August 1, 1973 . . . . . . . . . . . Sixteenth Supplemental Indenture*
September 1, 1973. . . . . . . . . . Seventeenth Supplemental Indenture
October 1, 1975. . . . . . . . . . . Eighteenth Supplemental Indenture
February 1, 1977 . . . . . . . . . . Nineteenth Supplemental Indenture
July 15, 1980. . . . . . . . . . . . Twentieth Supplemental Indenture
December 1, 1980 . . . . . . . . . . Twenty-First Supplemental Indenture*
April 1, 1981. . . . . . . . . . . . Twenty-Second Supplemental Indenture
February 1, 1984 . . . . . . . . . . Twenty-Third Supplemental Indenture
March 15, 1984 . . . . . . . . . . . Twenty-Fourth Supplemental Indenture
October 1, 1985. . . . . . . . . . . Twenty-Fifth Supplemental Indenture
<PAGE>
<CAPTION>
SUPPLEMENTAL INDENTURE
DATED (AS OF) HEREINAFTER REFERRED TO AS
---------------------- --------------------------
<S> <C>
December 1, 1987 . . . . . . . . . . Twenty-Sixth Supplemental Indenture*
September 1, 1991. . . . . . . . . . Twenty-Seventh Supplemental Indenture
July 1, 1992 . . . . . . . . . . . . Twenty-Eighth Supplemental Indenture
October 1, 1992. . . . . . . . . . . Twenty-Ninth Supplemental Indenture
February 1, 1993 . . . . . . . . . . Thirtieth Supplemental Indenture
July 1, 1993 . . . . . . . . . . . . Thirty-First Supplemental Indenture
November 1, 1993 . . . . . . . . . . Thirty-Second Supplemental Indenture
</TABLE>
- ------------------
*Includes amendments to or modifications of certain provisions of the 1941
Mortgage.
(said 1941 Mortgage, as supplemented, amended or modified by the aforesaid
Supplemental Indentures, being hereinafter referred to as the "Indenture",
except as such term is differently defined and used in and for the purposes
of the Form of Bond of Collateral Series A and the Form of Trustee's
Certificate hereinafter set forth), whereby the Company granted, bargained,
sold, warranted, released, conveyed, assigned, transferred, mortgaged,
pledged, set over and confirmed unto the Trustee, and to its respective
successors in trust, upon the terms, conditions and trusts therein set forth,
all the property as therein described, real, personal and mixed, then owned
or thereafter acquired by the Company, with certain exceptions as in the
granting clauses and definitions of the Indenture set forth, to be held by
the Trustee in trust, under the terms and subject to the conditions of the
Indenture, as security for the bonds of the Company issued and to be issued
thereunder in accordance with the provisions of the Indenture; and
WHEREAS, Section 2.01 of the 1941 Mortgage provides that bonds may
be issued thereunder in one or more series, each series to have such
distinctive designation as the Board of Directors of the Company may select
for such series; and
WHEREAS, the Company has heretofore issued and there are now
outstanding, in accordance with the provisions of the 1941 Mortgage and said
Supplemental Indentures bonds of several series designated "First Mortgage
Bonds, 8.80% Series due September 1, 2021", "First Mortgage Bonds, 6c% Series
due October 1, 2005", "First Mortgage Bonds, 7.30% Series due October 1,
2002", "First Mortgage Bonds, 6.80% Series due February 1, 2003", "First
Mortgage Bonds, 7c% Series Due July 1, 2023" and First Mortgage Bonds Due
February 1, 2013; and
WHEREAS, the Company has agreed to issue $50,000,000 in aggregate
principal amount of Senior Notes, 6.08% Series Due December 1, 2028 (the
"Related Securities") pursuant to an Indenture, dated as of December 1, 1998,
between the Company and Firstar Bank Milwaukee, N.A., as trustee (the "Senior
Trustee"); and
WHEREAS, in order to secure the Company's obligations to pay
principal, premium, if any, and interest on the Related Securities, the
Company is desirous of providing
2
<PAGE>
for the issuance under the Indenture of bonds of a new series designated as
"First Mortgage Bonds, Collateral Series A", in an aggregate principal amount
of not more than $50,000,000, the bonds of said series to be issued as
registered bonds without coupons in any denominations that the Company may
from time to time execute and deliver, the bonds of said series, the
Trustee's Certificate, and the Form of Prepayment Record to be substantially
in the tenor following:
(Form of Bond of Collateral Series A)
WISCONSIN PUBLIC SERVICE CORPORATION
(Incorporated under the laws of the State of Wisconsin)
First Mortgage Bond, Collateral Series A
No._____________ $___________
THE FIRST MORTGAGE BONDS, COLLATERAL SERIES A (HEREINAFTER, "COLLATERAL
BONDS"), REPRESENTED BY THIS CERTIFICATE ARE BEING ISSUED AND DELIVERED BY
THE COMPANY TO FIRSTAR BANK MILWAUKEE, N.A., NATIONAL ASSOCIATION, AS TRUSTEE
(IN SUCH CAPACITY, THE "SENIOR TRUSTEE") UNDER AN INDENTURE, DATED AS OF
DECEMBER 1, 1998, BETWEEN THE COMPANY AND THE SENIOR TRUSTEE, AS SUPPLEMENTED
BY THE FIRST SUPPLEMENTAL INDENTURE THERETO DATED AS OF DECEMBER 1, 1998 (AS
SO SUPPLEMENTED, THE "SENIOR INDENTURE"). THE COLLATERAL BONDS ARE TO BE
HELD IN TRUST AS COLLATERAL FOR THE BENEFIT OF THE HOLDERS OF $50,000,000
AGGREGATE PRINCIPAL AMOUNT OF SENIOR NOTES, 6.08% SERIES DUE DECEMBER 1, 2028
(THE "RELATED SECURITIES") ISSUED PURSUANT TO THE SENIOR INDENTURE.
THE COLLATERAL BONDS MAY NOT BE SOLD OR OTHERWISE TRANSFERRED (EXCEPT TO A
SUCCESSOR SENIOR TRUSTEE) UNTIL THE EARLIER OF THE RELEASE DATE (AS DEFINED
BELOW) OR THE PRIOR RETIREMENT OF THE RELATED SECURITIES THROUGH REDEMPTION,
REPURCHASE OR OTHERWISE.
THE COMPANY SHALL MAKE PAYMENTS OF THE PRINCIPAL OF, AND PREMIUM, IF ANY, AND
INTEREST ON, THE COLLATERAL BONDS, TO THE SENIOR TRUSTEE, WHICH PAYMENTS
SHALL BE APPLIED BY THE SENIOR TRUSTEE TO THE SATISFACTION OF OBLIGATIONS ON
THE RELATED SECURITIES.
THE MATURITY DATE SPECIFIED ABOVE IS ALSO THE MATURITY DATE OF THE RELATED
SECURITIES.
WISCONSIN PUBLIC SERVICE CORPORATION, a corporation organized and
existing under the laws of the State of Wisconsin (hereinafter called the
Company), for value received, hereby promises to pay to FIRSTAR BANK
MILWAUKEE, N.A., NATIONAL
3
<PAGE>
ASSOCIATION, as trustee for the benefit of the holders of Related Securities,
or registered assigns (in such capacity, the "Senior Trustee"), on the 1st
day of December, 2028, the sum of _____________________ DOLLARS
($___________) in lawful money of the United States of America, and to pay
interest thereon from the date hereof at the rate of six and eight hundredths
per cent (6.08%) per annum, in like money, until the principal hereof becomes
due and payable, said interest being payable on the 1st day of June and on
the 1st day of December in each year commencing June 1, 1999. The principal
and interest so payable on any June 1 or December 1 will be paid to the
person or entity in whose name this bond is registered, at the address
thereof as it appears on the Company's books for registration and
registration of transfer.
The provisions of this bond are continued on the reverse hereof or
attached pages and such continued provisions shall for all purposes have the
same effect as though fully set forth at this place.
This bond shall not be valid or become obligatory for any purpose
unless and until Firstar Bank Milwaukee, N.A., National Association
(successor to First Wisconsin Trust Company), as Trustee under the Indenture,
or its successors thereunder, shall have signed the certificate of
authentication endorsed hereon.
IN WITNESS WHEREOF, WISCONSIN PUBLIC SERVICE CORPORATION has caused
this bond to be signed in its name by the manual or facsimile signature of
its President or a Vice President and its corporate seal or a facsimile
thereof to be hereto affixed and attested by the manual or facsimile
signature of its Secretary or an Assistant Secretary.
Dated as of:
WISCONSIN PUBLIC SERVICE CORPORATION,
By:
------------------------------------
______ President
Attest:
- -----------------------------
____________ Secretary
4
<PAGE>
(Form of Trustee's Certificate)
This bond is one of the bonds of the series designated therein,
described in the within mentioned Indenture and Supplemental Indenture.
FIRSTAR BANK MILWAUKEE, N.A.,
NATIONAL ASSOCIATION
As Trustee
By:
---------------------------------------
Authorized Signature
(TEXT APPEARING ON REVERSE SIDE OF BOND OR ATTACHED PAGES)
This bond is one of a duly authorized issue of bonds of the
Company, known as its First Mortgage Bonds, of the series and designation
indicated on the face hereof, which issue of bonds consists, or may consist,
of several series of varying denominations, dates and tenors, all issued and
to be issued under and equally secured (except in so far as a sinking fund,
or similar fund, established in accordance with the provisions of the
Indenture, may afford additional security for the bonds of any specific
series) by a First Mortgage and Deed of Trust (herein called the "Indenture")
dated as of January 1, 1941, executed by the Company to First Wisconsin Trust
Company (subsequently succeeded by Firstar Bank Milwaukee, National
Association, herein called the Trustee), as Trustee, to which Indenture and
all instruments supplemental thereto reference is hereby made for a
description of the property mortgaged and pledged, the nature and extent of
the security, the rights of the holders of the bonds as to such security, and
the terms and conditions upon which the bonds may be issued under the
Indenture and any instruments supplemental thereto and are secured. The
principal hereof may be declared or may become due on the conditions, in the
manner and at the time set forth in the Indenture, upon the happening of a
completed default as in the Indenture provided. This bond is one of a series
created by a Supplemental Indenture (herein called the "Supplemental
Indenture") dated as of December 1, 1998, between the Company and the
Trustee, which is supplemental to the Indenture.
The Senior Trustee has agreed pursuant to the Senior Indenture to
hold the Bonds of this Series as collateral for the benefit of the holders of
the Related Securities under all circumstances and not to transfer (except to
a successor trustee) such Bonds until the earlier of the Release Date or the
prior retirement of the Related Securities through redemption, repurchase or
otherwise. "Release Date" means the date on which all First Mortgage Bonds
of the Company issued and outstanding under the Indenture, other than the
Bonds of this Series and other Bonds pledged as security for Securities
issued under the Senior Indenture (collectively "Collateral Bonds"), have
been retired (at, before or after the maturity thereof)
5
<PAGE>
through payment, redemption or otherwise, provided that no default or event
of default has occurred and is continuing under the Senior Indenture. On the
Release Date, the Senior Trustee shall deliver to the Company for
cancellation all Collateral Bonds, and the Company shall cause the Senior
Trustee to provide notice to all holders of Related Securities of the
occurrence of the Release Date. As a result, on the Release Date, the Bonds
of this Series shall cease to secure the Related Securities. Following the
Release Date, the Company shall cause the Indenture to be discharged, and the
Company shall not issue any additional Collateral Bonds thereunder, and from
and after the Release Date, the Company's obligations in respect of the
Collateral Bonds shall be satisfied and discharged.
With the consent of the Company and to the extent permitted by and
as provided in the Indenture and/or any instruments supplemental thereto, the
rights and obligations of the Company and/or of the holders of the bonds,
and/or terms and provisions of the Indenture and/or of any instruments
supplemental thereto may be modified or altered by consent of the holders of
at least seventy percent (70%) in principal amount of the bonds then
outstanding under the Indenture and any instruments supplemental thereto
(excluding bonds challenged and disqualified from voting by reason of the
interest of the Company or of certain related persons therein as provided in
the Indenture); provided that no such modification or alteration shall permit
the extension of the maturity of the principal of this bond or the reduction
in the rate of interest hereon or any other modification in the terms of
payment of such principal or interest or the taking of certain other action
as more fully set forth in the Indenture without the consent of the holder
hereof.
The Company and the Trustee may deem and treat the person in whose
name this bond is registered as the absolute owner hereof for the purpose of
receiving payment of or on account of the principal hereof and interest
hereon and for all other purposes, and shall not be affected by any notice to
the contrary.
The bonds of this Series are subject to redemption, prior to
maturity, at the option of the Company in whole at any time or in part from
time to time, upon payment of a redemption price equal to the greater of (i)
100% of the principal amount of the bonds to be redeemed or (ii) the sum of
the present values of the remaining scheduled payments of principal and
interest thereon discounted to the redemption date on a semiannual basis
(assuming a 360 day year consisting of twelve 30-day months) at the Treasury
Yield (as defined in the Supplemental Indenture) plus two-tenths of one
percent (.20%), plus in each case accrued interest thereon to the redemption
date, all subject to the conditions and as more fully set forth in the
Indenture and the Supplemental Indenture.
Notice of any such redemption shall be hand delivered or mailed not
less than thirty (30) days prior to the redemption date to the registered
owner of the bonds so to be redeemed, at its address as the same shall appear
on the Company's books for registration and registration of transfer, all
subject to the conditions and as more fully set forth in the Indenture and in
the Supplemental Indenture, except that no newspaper publication shall be
required.
6
<PAGE>
In the event that an event of default under Section 6.01 of the
Senior Indenture has occurred and is continuing, and the Senior Trustee has
declared the principal of all of the Related Securities then outstanding
immediately due and payable (or such principal has become ipso facto
immediately due and payable) under Section 6.02 of the Senior Indenture, then
the Company shall call for redemption and redeem all of the bonds of this
series then outstanding at a price equal to 100% of the principal amount
thereof, together with accrued interest thereon to the redemption date. The
redemption date shall be the accelerated maturity date of the Related
Securities, and no prior notice of such redemption to the Trustee or the
Senior Trustee shall be required.
This bond is nontransferable except to the Senior Trustee and
successor trustees thereto. To the extent that it is transferable, it is
transferable by the registered owner hereof in person or by attorney duly
authorized in writing, on books of the Company to be kept for that purpose at
the principal office of the Trustee at Milwaukee, Wisconsin, upon surrender
hereof for cancellation at said office and upon presentation of a written
instrument of transfer duly executed. Thereupon the Company shall issue in
the name of the transferee, and the Trustee shall authenticate and deliver, a
new registered bond or bonds without coupons of the same maturity and
interest rate and of equal aggregate principal amount. Any such transfer
shall be subject to the terms and conditions specified in the Indenture and
the Supplemental Indenture.
No recourse shall be had for the payment of principal of, premium,
if any, or interest on this bond, or any part thereof, or of any claim based
hereon or in respect hereof or of the Indenture or any instrument
supplemental thereto, against any incorporator, or any past, present or
future stockholder, officer or director of the Company or of any predecessor
or successor corporation, either directly or through the Company, or through
any such predecessor or successor corporation, or through any receiver or a
trustee in bankruptcy, whether by virtue of any constitution, statute or rule
of law or by the enforcement of any assessment or penalty or otherwise, all
such liability being, by the acceptance hereof and as a part of the
consideration for the issue hereof, expressly waived and released, as more
fully provided in the Indenture.
(END OF TEXT OF BOND)
7
<PAGE>
(Form of Prepayment Record)
PREPAYMENT RECORD
PRINCIPAL AMOUNT OF BOND $__________
DATE OF MATURITY: December 1, 2028
<TABLE>
<CAPTION>
PREPAYMENTS ON PRINCIPAL
------------------------
BALANCE SIGNATURE OF AUTHORIZED
AMOUNT DATE OUTSTANDING OFFICER AND TITLE
------ ---- ----------- -----------------
<S> <C> <C> <C>
</TABLE>
and
WHEREAS, the 1941 Mortgage provides that the Company and the
Trustee may enter into indentures supplemental thereto for the purposes,
among others, of providing the terms and conditions of the issue of the bonds
of any new series; and
WHEREAS, the Company is presently engaged within the States of
Wisconsin and Michigan in transmitting, conveying, distributing, supplying
and serving electricity and gas and intends that this Supplemental Indenture
shall be received for record and for filing in the appropriate public offices
of said States or of any other jurisdiction in which there may be located
from time to time properties intended to be subject to the lien of the
Indenture in the manner and with the effect provided by their respective laws
in respect to mortgages by, and security interests in existing and hereafter
acquired properties of, a corporation so engaged; and
WHEREAS, the execution and delivery of this Supplemental Indenture
and the issue of bonds as in this Supplemental Indenture and the Indenture
provided have been duly authorized by a resolution adopted by the Board of
Directors of the Company; and
WHEREAS, all things necessary to make the bonds of Collateral
Series A, when duly issued and executed by the Company, and authenticated and
delivered by the Trustee, valid, binding and legal obligations of the
Company, and to make the Indenture and this Supplemental Indenture valid,
binding and legal instruments for the security thereof, have been done and
performed and the issue of said bonds, as in this Supplemental Indenture and
the Indenture provided, has been in all respects duly authorized;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH: Wisconsin
Public Service Corporation, in consideration of the premises and of one
dollar to it duly paid by the Trustee at or before the ensealing and delivery
of these presents, the receipt whereof is hereby acknowledged, does hereby
covenant and agree to and with Firstar Bank Milwaukee, National Association,
as Trustee, as follows:
8
<PAGE>
ARTICLE I.
FORM AND EXECUTION OF BONDS OF NEW SERIES
SECTION 1.01. There is hereby created, for issuance under the
Indenture on the date of authentication and delivery of the Related
Securities, a series of bonds designated as Collateral Series A (herein
sometimes referred to as the bonds of Collateral Series A), each of which
shall bear the descriptive title "First Mortgage Bond, Collateral Series A".
The bonds of said series shall be issued only in the form of registered bonds
without coupons and shall be substantially of the tenor and purport, and in
the form, hereinbefore recited. The bonds of said series shall mature on
December 1, 2028, and shall be issued in any denominations that the Company
may execute and deliver. The bonds of said series shall bear interest at the
rate of six and eight hundredths percent (6.08%) per annum, payable
semiannually on June 1 and December 1 of each year commencing June 1, 1999.
Bonds of said series issued prior to June 1, 1999 shall be dated as of
December 1, 1998 and bonds of said series issued on and after June 1, 1999
shall be dated as provided in Section 2.09 of the 1941 Mortgage. Principal
and interest will be payable to the registered owner of the bonds of said
series, and at the address thereof, appearing on the Company's books for
registration and registration of transfer. Said bonds will be
nontransferable except to the Senior Trustee and successors thereto, if any.
SECTION 1.02. The aggregate principal amount of all bonds of
Collateral Series A which may at any time be certified, issued and
outstanding shall be limited to $50,000,000, and bonds of said series may be
executed, authenticated, delivered and issued hereunder from time to time
subject to the restrictions and provisions contained in this Supplemental
Indenture and in the 1941 Mortgage.
SECTION 1.03. The bonds of Collateral Series A are subject to
redemption prior to maturity at the option of the Company, in whole at any
time or in part from time to time, at a redemption price equal to the greater
of (i) 100% of their principal amount or (ii) the sum of the present values
of the remaining scheduled payments of principal and interest thereon
discounted to the date of redemption on a semiannual basis (assuming a 360
day year consisting of twelve 30-day months) at the Treasury Yield (as
hereinafter defined) plus two-tenths of one percent (.20%), plus in each case
accrued interest to the date of redemption. The redemption price shall be
set forth in an Officers' Certificate delivered to the Trustee on or before
the redemption date.
"Treasury Yield" means, with respect to any redemption date, the
rate per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a maturity
comparable to the remaining term of the bonds of Collateral Series A that
would be utilized, at the time of
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selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining
term of the bonds of Collateral Series A. "Independent Investment Banker"
means Salomon Smith Barney Inc. or, if such firm is unwilling or unable to
select the Comparable Treasury Issue, one of the remaining Reference Treasury
Dealers appointed by the Trustee after consultation with the Company.
"Comparable Treasury Price" means, with respect to any redemption
date, (i) the average of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) on the
third business day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal
Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations for
U.S. Government Securities" or (ii) if such release (or any successor
release) is not published or does not contain such prices on such business
day, (A) the average of the Reference Treasury Dealer Quotations for such
redemption date, after excluding the highest and lowest such Referenced
Treasury Dealer Quotations for such redemption date or (B) if the Trustee
obtains fewer than four such Reference Treasury Dealer Quotations, the
average of all such Quotations "Reference Treasury Dealer Quotations" means,
with respect to each Reference Treasury Dealer and any redemption date, the
average, as determined by the Company, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Company by such Reference Treasury
Dealer at 5:00 p.m. on the third business day preceding such redemption date.
"Reference Treasury Dealer" means (i) each of Salomon Smith Barney
Inc. ("Salomon") and any other primary U.S. Government securities dealer in
New York City (a "Primary Treasury Dealer") designated by, and not affiliated
with, Salomon, PROVIDED, HOWEVER, that if Salomon or any of its designees
shall cease to be a Primary Treasury Dealer, the Company shall substitute
therefor another Primary Treasury Dealer, and (ii) any other Primary Treasury
Dealer or Dealers selected by the Company.
SECTION 1.04. In the event that the Company shall desire to
exercise its right to redeem and pay all or any part of the bonds of
Collateral Series A pursuant to Section 1.03, it shall, except as modified
herein, comply with the terms and conditions of Article XI of the Indenture
with regard to the redemption of bonds of any series secured thereby, and
such redemption shall be made under and subject to the terms and provisions
of said Article XI and in the manner and with the effect stated therein;
provided, however, (a) the Company shall specify, in accordance with the
provisions of this Supplemental Indenture, those bonds of Collateral Series A
which are to be redeemed if only a part thereof are to be redeemed, and
payments in redemption of bonds of Collateral Series A shall be made directly
by the Company to the registered owners of the bonds entitled thereto; and
(b) the provisions of Section 11.03(b) of the 1941 Mortgage shall not be
applicable to any such redemption. The Company shall not exercise any option
to redeem on any date all or any part of the bonds of Collateral Series A
unless it shall give a valid direction under the Senior Indenture for the
redemption on such date of an equal amount of Related Securities. Notice of
each such redemption shall be
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hand delivered or mailed, by certified mail, with return receipt requested,
at least forty-five (45) days prior to the redemption date, to the registered
owner of the bonds which are to be redeemed at its address appearing on the
Company's books for registration and registration of transfer. Such delivery
or mailing (but not the receipt thereof or the return of the receipt so
requested) shall be a condition to the redemption of the bonds. All bonds so
redeemed shall forthwith be delivered to the Trustee and cancelled, but only
when the principal, premium, if any, and accrued interest thereon is paid in
full. The Trustee, when required to select bonds of Collateral Series A for
redemption, shall promptly notify the Company, and the Company, when
selecting bonds of Collateral Series A for redemption, shall promptly notify
the Trustee, in writing of the distinctive numbers of the bonds selected for
redemption in whole or in part. For the purpose only of complying with the
Indenture (particularly Section 11.02 thereof) in connection with the
redemption of bonds of Collateral Series A, for each $1,000 principal amount
of bonds authenticated and delivered hereunder there shall be assigned a
number in such manner and at such time as the Trustee or the Company shall
deem appropriate.
SECTION 1.05. The Company shall call for redemption all of
the bonds of the Collateral Series A then outstanding, and shall on the
redemption date therefor redeem the same at a price equal to 100% of the
principal amount thereof, together with accrued interest to the redemption
date, in the event that an event of default has occurred and is continuing
under Section 6.01 of the Senior Indenture, and the Senior Trustee has
declared the principal of all Related Securities then outstanding immediately
due and payable (or such principal has become ipso facto immediately due and
payable) pursuant to Section 6.02 of the Senior Indenture. The redemption
date shall be the accelerated maturity date of the Related Securities;
provided, however, that such requirement of redemption shall be deemed to be
waived if prior to the date fixed for such redemption of the bonds of
Collateral Series A, the acceleration of the Related Securities is waived or
annulled. Any provision of Article XI of the Indenture notwithstanding, no
prior notice of such redemption of the bonds of Collateral Series A to the
Trustee or the Senior Trustee shall be required.
SECTION 1.06. Subject to the provisions of Section 1.04,
Bonds of Collateral Series A may be redeemed in part, but the portion of any
such bond so redeemed in part shall be One Thousand Dollars ($1,000) or an
integral multiple thereof. In case any bond shall be redeemed in part only,
payment of the redemption price of such portion of the bond of Collateral
Series A shall be made by the Company (or Trustee, as the case may be) to the
registered owner thereof, at its address appearing on the Company's books for
registration and registration of transfer of bonds of Collateral Series A
without presentation or surrender thereof, provided there is on file with the
Company and Trustee (and not theretofore rescinded by written notice from
such registered owner to the Company and Trustee) a written commitment from
such registered owner to the effect that (1) payments will be so made, and
(2) such registered owner will make notations on such bond or a paper
attached thereto of the portion thereof so redeemed. Prior to any transfer
by the registered owner of any bond of Collateral Series A, the same shall be
surrendered to the Company or Trustee for appropriate notation thereon of, or
in exchange for a new bond or bonds for, the unredeemed balance of the
principal amount thereof. The Trustee shall not be under any duty to
determine that any of the notations mentioned herein have been made or be
liable in any manner with respect thereto.
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SECTION 1.07. The Company shall not be obligated to make any
transfer of bonds of Collateral Series A for a period of fifteen (15)
calendar days next preceding any interest payment date, or next preceding any
selection by lot of bonds to be redeemed. The Company shall not be obligated
to make transfers of any bonds called or being called for redemption.
SECTION 1.08. No charge shall be made to any registered owner
of any bond of Collateral Series A for any transfer of bonds of said series
except for any tax or other governmental charge required to be paid in
connection therewith.
SECTION 1.09. The signatures of the President or a Vice
President and of the Secretary or an Assistant Secretary upon the bonds of
Collateral Series A may be facsimile signatures imprinted or otherwise
reproduced on such bonds. Any such facsimile signature shall have the same
effect and shall be subject to the same provisions set forth in Section 2.13
of the 1941 Mortgage as to signatures upon bonds generally.
SECTION 1.10. In the event that an interest payment or
maturity date or a date fixed for redemption of any bond of Collateral Series
A shall be a Saturday, Sunday or a legal holiday or a day on which banking
institutions in the city of location of the registered address of the owner
are authorized by law to close, then payment of interest or principal (and
premium, if any) need not be made on such date, but may be made on the next
succeeding business day not a Saturday, Sunday or a legal holiday or a day
upon which banking institutions in the city of location of the registered
address of the owner are authorized by law to close, with the same force and
effect as if made on the date of maturity, interest date, or the date fixed
for redemption, and no interest shall accrue for the period after such date.
SECTION 1.11. Bonds of Collateral Series A which have been
redeemed or have been paid at maturity shall not be reissued as bonds of said
series, but may be made the basis for the issuance of additional bonds of any
series hereafter created, or credits may be taken or cash withdrawn on the
basis thereof under any applicable provisions of the 1941 Mortgage or any
future supplemental indenture.
ARTICLE II.
CONFIRMATION OF LIEN
SECTION 2.01. The Company, in order to record the description
of, and confirm unto the Trustee, certain property acquired after the
execution and delivery of the 1941 Mortgage and now subject to the lien
thereof by virtue of the provisions of the 1941 Mortgage conveying to the
Trustee property acquired after its execution and delivery, by these presents
does grant, bargain, sell, warrant, release, convey, assign, transfer,
mortgage, pledge, set over and confirm unto Firstar Bank Milwaukee, National
Association, as Trustee, and to its respective successors in said trust
forever, subject to the rights reserved by the Company in and by other
provisions of the Indenture and this Supplemental Indenture, all of the
property described and mentioned or enumerated or referred to in a schedule
hereto
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annexed and marked Schedule A, reference to said schedule for a description
and enumeration of the property therein described and enumerated being hereby
made with the same force and effect as if the same were incorporated herein
at length;
Together with all and singular the tenements, hereditaments and
appurtenances belonging or in any wise appertaining to the aforesaid property
or any part thereof with the reversion and reversions, remainder and
remainders, tolls, rents and revenues, issues, income, product and profits
thereof, and all the estate, right, title and interest and claim whatsoever,
at law as well as in equity, which the Company now has or may hereafter
acquire in and to the aforesaid property and every part and parcel thereof;
To have and to hold all said properties, mortgaged, pledged or
conveyed by the Company as aforesaid, or intended so to be, unto the Trustee
and its successors and assigns forever, subject, however, to permissible
encumbrances as defined in the 1941 Mortgage; but in trust, nevertheless, for
the same purposes and upon the same conditions as are fully set forth in the
Indenture, which is hereby referred to.
ARTICLE III.
PARTICULAR COVENANTS OF THE COMPANY
In addition to the covenants contained in the Indenture, the
Company hereby covenants as follows:
SECTION 3.01. That it is duly authorized under the laws of
the State of Wisconsin and under all other applicable provisions of law to
create and issue the bonds of Collateral Series A, and to execute and deliver
this Supplemental Indenture, and that all corporate action on its part for
the creation and issue of said bonds and the execution of this Supplemental
Indenture has been duly and effectually taken, and that said bonds when
issued and delivered to the owners thereof are and will be valid and
enforceable obligations of the Company, and that the Indenture is and always
will be a valid mortgage and deed of trust to secure the payment of said
bonds.
SECTION 3.02. That it is lawfully possessed of all the
property mortgaged and pledged by the Indenture; that it will maintain and
preserve the lien of the Indenture on the property mortgaged and pledged
thereby in accordance with the terms thereof and hereof so long as any of the
bonds issued thereunder are outstanding; and that it has good right and
lawful authority to mortgage and pledge the property mortgaged and pledged
thereby as provided in and by the Indenture; and that the same is free and
clear of all liens and encumbrances, except permissible encumbrances as
defined in the Indenture.
SECTION 3.03. That the Company will duly and punctually pay
to the registered owner of bonds of Collateral Series A issued under and
secured by the Indenture and this Supplemental Indenture the principal and
interest of said bonds at the dates and place and in the manner mentioned in
such bonds.
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SECTION 3.04. That the Trustee shall not incur any liability
by reason of any default, failure or delay on the part of the Company to
observe or perform its covenants contained in this Article III.
ARTICLE IV.
MISCELLANEOUS
SECTION 4.01. The recitals of fact herein and in the bonds
hereby created contained (except the Trustee's Certificate) shall be taken as
statements of the Company and shall not be construed as made or warranted by
the Trustee. The Trustee makes no representations as to the validity of this
Supplemental Indenture or of the bonds issued under the Indenture by virtue
hereof. Except as herein otherwise provided, no duties, responsibilities or
liabilities are assumed, or shall be construed to be assumed, by the Trustee
by reason of this Supplemental Indenture other than as set forth in the
Indenture; and this Supplemental Indenture is executed and accepted on behalf
of the Trustee, subject to all the terms and conditions set forth in the
Indenture, as fully to all intents as if the same were herein set forth at
length.
SECTION 4.02. This Supplemental Indenture shall be construed
in connection with and as a part of the Indenture.
SECTION 4.03. (a) Whenever in this Supplemental Indenture
either of the parties hereto is named or referred to, such reference shall be
deemed to include the successors or assigns of such party, and all the
covenants and agreements in this Supplemental Indenture contained by or on
behalf of the Company or by or on behalf of the Trustee shall bind and inure
to the benefit of the respective successors and assigns of such parties,
whether so expressed or not.
(b) The table of contents and the descriptive headings of the
several Articles of this Supplemental Indenture were formulated, used and
inserted in this Supplemental Indenture for convenience only and shall not be
deemed to affect the meaning or construction of any of the provisions hereof.
SECTION 4.04. (a) If any provision of this Supplemental
Indenture limits, qualifies, or conflicts with another provision of this
Supplemental Indenture or of the Indenture required or deemed to be included
in indentures qualified under the Trust Indenture Act of 1939 (as enacted
prior to the date of this Supplemental Indenture) by any of Sections 310 to
317, inclusive, of the said Act, such required provisions shall control.
(b) In case any one or more of the provisions contained in this
Supplemental Indenture or in the bonds, issued hereunder and under the
Indenture should be invalid, illegal, or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and therein shall not in any way be affected, impaired, prejudiced or
disturbed thereby.
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SECTION 4.05. This Supplemental Indenture may be executed in
several counterparts, and all said counterparts executed and delivered, each
as an original, shall constitute but one and the same instrument.
SECTION 4.06. This Supplemental Indenture shall be effective
and binding from and after the time of actual execution and delivery thereof,
notwithstanding the fact that such execution and delivery may occur prior or
subsequent to December 1, 1998.
SECTION 4.07. The debtor and its mailing address is WISCONSIN
PUBLIC SERVICE CORPORATION, 700 North Adams Street, P.O. Box 19001, Green
Bay, Wisconsin 54307. The secured party and its address, from which
information concerning the security interest hereunder may be obtained, is
FIRSTAR BANK MILWAUKEE, N.A., NATIONAL ASSOCIATION, Corporate Trust
Department, 1555 North RiverCenter Drive, Suite 301, Milwaukee, Wisconsin
53212.
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IN WITNESS WHEREOF, the party of the first part has caused its
corporate name and seal to be hereunto affixed and this Supplemental
Indenture to be signed by its Chairman, President or Vice President, and
attested by its Secretary or an Assistant Secretary, for and in its behalf,
and the party of the second part has caused its corporate name and seal to be
hereunto affixed, and this Supplemental Indenture to be signed by its
President, a Vice President or an Assistant Vice President, and attested by
its Secretary or an Assistant Secretary, for and in its behalf, all done as
of the first day of December, 1998.
WISCONSIN PUBLIC SERVICE CORPORATION,
By: /s/ Daniel P. Bittner
--------------------------------
Daniel P. Bittner,
Senior Vice President-Finance
(SEAL)
Attest:
/s/ Francis J. Kicsar
- -------------------------------------
Francis J. Kicsar
Secretary
Executed by Wisconsin Public Service
Corporation, in presence of:
/s/ Diane L. Behling
- -------------------------------------
Diane L. Behling
/s/ Patti L. Herrmann
- -------------------------------------
Patti L. Herrmann
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FIRSTAR BANK MILWAUKEE, N.A.,
NATIONAL ASSOCIATION
As Trustee,
By: /s/ Amy E. Nolde
-----------------------------------
Amy E. Nolde
Assistant-Vice President
(SEAL)
Attest:
/s/ Yvonne Siira
- -------------------------------------
Yvonne Siira
Assistant Secretary
Executed by Firstar Bank Milwaukee, N.A., National Association
in presence of:
/s/ Lori E. Sandvik
- -------------------------------------
Lori E. Sandvik, Assistant Secretary
/s/ Peter M. Brennan
- -------------------------------------
Peter M. Brennan, Assistant Secretary
17
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STATE OF WISCONSIN }
} ss.
BROWN COUNTY }
Personally came before me this 15th day of December, A.D. 1998,
Daniel P. Bittner, to me known to be the Senior Vice President-Finance, and
Francis J. Kicsar, to me known to be the Secretary of the above-named
WISCONSIN PUBLIC SERVICE CORPORATION, the corporation described in and which
executed the foregoing instrument, and to me known to be the persons who as
such officers executed the foregoing instrument in the name and behalf of
said corporation, and acknowledged the same, and acknowledged that the seal
affixed to said instrument is the corporate seal of said corporation, and
that they signed, sealed and delivered said instrument in the name and behalf
of said corporation by authority of its Board of Directors and said Daniel P.
Bittner and Francis J. Kicsar then and there acknowledged said instrument to
be the free act and deed of said corporation by each of them voluntarily
executed.
Given under my hand and notarial seal this 15th day of December,
A.D. 1998.
/s/ Barth J. Wolf
-----------------------------------------
Barth J. Wolf
Notary Public, Brown County, Wisconsin
My commission is permanent.
(NOTARIAL SEAL)
18
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STATE OF WISCONSIN }
} ss.
MILWAUKEE COUNTY }
Personally came before me this 15TH day of December, A.D. 1998, AMY
E. NOLDE, to me known to be a Vice President and YVONNE SIIRA, to me known to
be an Assistant Secretary of the above-named FIRSTAR BANK MILWAUKEE, N.A.,
NATIONAL ASSOCIATION, the corporation described in and which executed the
foregoing instrument, and to me known to be the persons who as such officers
executed the foregoing instrument in the name and behalf of said corporation,
and acknowledged the same, and acknowledged that the seal affixed to said
instrument is the corporate seal of said corporation, and that they signed,
sealed and delivered said instrument in the name and behalf of said
corporation by authority of its Board of Directors and said AMY E. NOLDE and
YVONNE SIIRA then and there acknowledged said instrument to be the free act
and deed of said corporation by each of them voluntarily executed.
Given under my hand and notarial seal this 15TH day of December,
A.D. 1998.
/s/ F. J. Gingrasso
--------------------------------------
F. J. Gingrasso
Notary Public, Milwaukee County, Wisconsin
My commission is permanent
(NOTARIAL SEAL)
This instrument was drafted by Attorney Michael S. Nolan of the law firm of
Foley & Lardner, Milwaukee, Wisconsin.
19
