SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES AND EXCHANGE ACT OF 1934
Date of Report (Date of Earliest Event Reported): July 1, 1995
MID-PLAINS TELEPHONE, INC.
(Exact name of registrant as specified in its charter)
WISCONSIN
(State or Other Jurisdiction of Incorporation)
0-08320 39-0274450
(Commission (IRS Employer
File Number) Identification No.)
1912 Parmenter Street, P.O. Box 620070, Middleton, Wisconsin 53562-0070
(Address of principal executive offices) (Zip Code)
(608) 831-1000
(Registrant's Telephone Number, Including Area Code)
<PAGE>
Item 5. Other Events
The Company has made an initial issue of Debentures to be known as Series
1995 Registered Subordinated Debentures in the amount of $5,000,000.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
(C) Exhibits
EXHIBIT NO. 4 Instruments defining the rights of security holders
including indentures.
MID-PLAINS TELEPHONE, INC.
and
M&I FIRST NATIONAL BANK,
As Trustee
INDENTURE
Dated as of April 27, 1995
PROVIDING FOR THE ISSUANCE OF
REGISTERED SUBORDINATED DEBENTURES
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.
Mid-Plains Telephone, Inc
By: /s/Howard Hopeman
Howard Hopeman
Vice President and
Chief Financial Officer
Date: July 6, 1995
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1. FORM, ISSUE, AUTHENTICATION, REGISTRATION,
TRANSFER AND EXCHANGE OF DEBENTURES . . . . . . . . . . . . 6
1.01 Debentures Issuable in Series. . . . . . . . . . . . . . 6
1.02 Provisions With Respect to All Series. . . . . . . . . . 6
1.03 Form of Debentures of All Series . . . . . . . . . . . . 7
1.04 Certification and Delivery of Debentures . . . . . . . . 7
1.05 Certification Essential and Conclusive . . . . . . . . . 8
1.06 Registration of Debentures . . . . . . . . . . . . . . . 8
1.07 Transfer of Debentures . . . . . . . . . . . . . . . . . 8
1.08 Exchange of Debentures . . . . . . . . . . . . . . . . . 8
1.09 Recognition of Ownership of Debentures . . . . . . . . . 9
1.10 Lost, Stolen or Mutilated Debentures . . . . . . . . . . 9
ARTICLE 2. FORM, AMOUNT, TERMS AND ISSUE OF
SERIES 1995 DEBENTURES; AUTHENTICATION
AND ISSUE OF DEBENTURES OF OTHER SERIES . . . . . . . . . . 9
2.01 Form, Date, Rate of Interest, Denomination and
Limitation of Principal Amount of Initial Issue
of Debentures . . . . . . . . . . . . . . . . . . . . . . 9
2.02 Issuance of Additional Debentures. . . . . . . . . . . . 10
2.03 Limitation on Outstanding Principal Amount of
Debentures. . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE 3. SUBORDINATION OF DEBENTURES. . . . . . . . . . . . . . . 11
3.01 Subordination Provision. . . . . . . . . . . . . . . . . 11
3.02 Effect of Subordination Upon Moneys Deposited
With the Trustee . . . . . . . . . . . . . . . . . . . . 13
3.03 Notice to Trustee of Senior Debt and Default
Thereon . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE 4. COVENANTS OF THE COMPANY . . . . . . . . . . . . . . . . 13
4.01 To Pay Debentures When Due . . . . . . . . . . . . . . . 13
4.02 Continued Operation of Company . . . . . . . . . . . . . 14
4.03 To Give Trustee Reasonable Access to Books . . . . . . . 14
4.04 Interim Financial Statements . . . . . . . . . . . . . . 14
4.05 Annual Audited Financial Statements. . . . . . . . . . . 14
4.06 Limitation on Dividends. . . . . . . . . . . . . . . . . 15
4.07 Limitation on Borrowing. . . . . . . . . . . . . . . . . 15
4.08 To Pay Compensation and Expenses to Trustee. . . . . . . 15
4.09 Not to Extend Interest . . . . . . . . . . . . . . . . . 15
4.10 Limitations on Issuance of Debentures. . . . . . . . . . 15
4.11 Notification of Change of Officers . . . . . . . . . . . 16
4.12 Financial Information to be Furnished
to Debentureholders. . . . . . . . . . . . . . . . . . . 16
4.13 Limitations on Increase of Interest Rate on
Outstanding Debentures. . . . . . . . . . . . . . . . . 16
ARTICLE 5. REDEMPTION OF DEBENTURES . . . . . . . . . . . . . . . . 16
5.01 Optional Redemption of Series 1995 Debentures. . . . . . 16
5.02 Redemption of Debentures of all Series to be in
Accordance With Article 5 . . . . . . . . . . . . . . . 16
5.03 Publication and Mailing of Notice of Redemption. . . . . 17
5.04 Method of Selection of Debentures to be
Redeemed . . . . . . . . . . . . . . . . . . . . . . . . 17
5.05 Effects of Call for Redemption . . . . . . . . . . . . . 17
5.06 Redeemed Debentures to be Destroyed and Not
Reissued . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE 6. DEFAULTS AND REMEDIES. . . . . . . . . . . . . . . . . . 17
6.01 Events of Default Defined. . . . . . . . . . . . . . . . 17
6.02 Notice of Default to Debentureholders. . . . . . . . . . 19
6.03 Acceleration of Maturity Up[on Event of Default;
Waiver of Default and Rescission of Declaration of
Maturity . . . . . . . . . . . . . . . . . . . . . . . . 19
6.04 Covenant of Company to Pay Trustee Whole Amount
Due on Debentures on Default in Payment of Interest
or Principal . . . . . . . . . . . . . . . . . . . . . . 20
6.05 Right of Trustee to Recover Judgment, File Proof
of Claim . . . . . . . . . . . . . . . . . . . . . . . . 20
6.06 Discontinuance of Proceedings by Trustee . . . . . . . . 21
6.07 Rights of Holders of Majority in Principal Amount
of Debentures to Direct Trustee. . . . . . . . . . . . . 21
6.08 Limitation on Suits by Holders of Debentures . . . . . . 21
6.09 Right of Holders of Debentures to Sue for Principal
and Interest When Due. . . . . . . . . . . . . . . . . . 22
6.10 Default Not Waived by Delay. . . . . . . . . . . . . . . 22
6.11 Application of Moneys Collected by Trustee . . . . . . . 22
ARTICLE 7. CONCERNING THE TRUSTEE . . . . . . . . . . . . . . . . . 23
7.01 Trustee's Acceptance . . . . . . . . . . . . . . . . . . 23
7.02 Trustee's Qualifications . . . . . . . . . . . . . . . . 23
7.03 Trustee's Liability. . . . . . . . . . . . . . . . . . . 24
7.04 Rights of Trustee. . . . . . . . . . . . . . . . . . . . 26
7.05 Powers of Trustee Cumulative . . . . . . . . . . . . . . 27
7.06 Compensation of Trustee. . . . . . . . . . . . . . . . . 27
7.07 Resignation of Trustee . . . . . . . . . . . . . . . . . 27
7.08 Removal of Trustee . . . . . . . . . . . . . . . . . . . 28
7.09 Successor Trustee. . . . . . . . . . . . . . . . . . . . 28
7.10 To Keep Record of Names and Addresses and to Furnish
to Company Upon Demand . . . . . . . . . . . . . . . . . 28
ARTICLE 8. CONSOLIDATION, MERGER AND SALE . . . . . . . . . . . . . 28
8.01 Consolidation, Merger, Sale or Conveyance
Permitted. . . . . . . . . . . . . . . . . . . . . . . . 28
8.02 Assumption of Obligation of Company by Successor
Company or Transferee. . . . . . . . . . . . . . . . . . 28
ARTICLE 9. IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
DIRECTORS AND OFFICERS. . . . . . . . . . . . . . . . . . . 29
9.01 Incorporators, Stockholders, Officers and Directors
Exempt from Individual Liability . . . . . . . . . . . . 29
ARTICLE 10. SATISFACTION OF THE INDENTURE. . . . . . . . . . . . . . 30
10.01 Satisfaction and Discharge of Indenture and Payment
of Moneys Held by Trustee. . . . . . . . . . . . . . . . 30
10.02 Evidence of Compliance With Conditions Precedent . . . . 31
ARTICLE 11. AMENDMENT OF INDENTURE . . . . . . . . . . . . . . . . . 31
11.01 Debentures Deemed Not Outstanding for Purposes
of Article 11. . . . . . . . . . . . . . . . . . . . . . 31
11.02 Manner of Calling Meetings . . . . . . . . . . . . . . . 31
11.03 Call of Meeting by Company or Debentureholders . . . . . 31
11.04 Who May Vote at Meetings . . . . . . . . . . . . . . . . 32
11.05 Provisions in Case Less Than All Series of
Debentures Affected. . . . . . . . . . . . . . . . . . . 32
11.06 What Constitutes Quorum at Meetings. . . . . . . . . . . 32
11.07 Powers of Debentureholders' Meetings . . . . . . . . . . 32
11.08 Resolutions Passed at Meeting Binding Upon
All Debentureholders . . . . . . . . . . . . . . . . . . 34
11.09 Minutes of Meetings to be Made and Recorded. . . . . . . 34
11.10 Written Authorization or Consent of Debentureholders
in Lieu of Meeting . . . . . . . . . . . . . . . . . . . 34
ARTICLE 12. SUPPLEMENTAL INDENTURES. . . . . . . . . . . . . . . . . 34
12.01 Purposes for Which Supplemental Indentures May
Be Entered Into. . . . . . . . . . . . . . . . . . . . . 34
12.02 Trustee Authorized to Execute Supplemental Indenture . . 35
12.03 Opinion of Counsel . . . . . . . . . . . . . . . . . . . 35
ARTICLE 13. DEFINITIONS AND MISCELLANEOUS PROVISIONS . . . . . . . . 36
13.01 Definitions of Terms Used in the Indenture . . . . . . . 36
13.02 No Person Shall Have Rights Under Indenture
Except Debentureholders and Holders of Senior Debt . . . 37
13.03 Interpretation and Application of Indenture. . . . . . . 37
13.04 Indenture Binding on Successors and Assigns. . . . . . . 37
13.05 Descriptive Headings . . . . . . . . . . . . . . . . . . 37
13.06 Counterparts . . . . . . . . . . . . . . . . . . . . . . 38
13.07 Notices to Debentureholders. . . . . . . . . . . . . . . 38
13.08 Officers' Certificate and Opinion of Counsel
to be Furnished by Company to Trustee Upon any
Application or Demand. . . . . . . . . . . . . . . . . . 38
13.09 Place and Manner of Giving Notice to the Company . . . . 38
<PAGE>
THIS INDENTURE, dated as of the 27th day of April, 1995, by
and between MID-PLAINS TELEPHONE, INC., a Wisconsin corporation
(hereinafter the "Company"), and M&I FIRST NATIONAL BANK, a
national banking association authorized to exercise corporate
trust powers (hereinafter the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has full power and is duly authorized
by law to issue and sell its obligations for its lawful corporate
purposes; and
WHEREAS, the Company deems it necessary and advisable for
its proper corporate purposes to issue its Debentures; and
WHEREAS, the Company has determined to make an initial issue
of Debentures to be known as Series 1995 Registered Subordinated
Debentures (hereinafter the "Series 1995 Debentures"), in an
amount not to exceed in the aggregate $5,000,000; and
WHEREAS, the said Series 1995 Debentures, the Trustee's
Certificate of Authentication to be endorsed on the Debentures,
and the Certificate of Registration, respectively, are to be
substantially in the following form, with appropriate insertions
and variations to evidence difference in number, payee and
denomination;
(FORM OF SERIES 1995 DEBENTURE)
No. $
MID-PLAINS TELEPHONE, INC.
SERIES 1995 REGISTERED SUBORDINATED DEBENTURE
(Subordinated to Senior Debt)
Dated , 19
Five (5) years after the date hereof, MID-PLAINS TELEPHONE,
INC., a Wisconsin corporation (hereinafter referred to as the
"Company"), for value received, hereby promises to pay to the
registered holder hereof (unless this Debenture be sooner
redeemed as hereinafter provided), at the office of the M&I FIRST
NATIONAL BANK, West Bend, Wisconsin, the Trustee under the
Indenture hereinafter described, upon the presentation and
surrender of this Debenture, the sum of
DOLLARS ($ ), in lawful money of the United States of
America, and to pay interest thereon in like coin or currency
from the date hereof until the payment of said principal sum, at
the rate of % per annum, payable quarterly on the first
day of October, January, April and July in each year at the
office of the Trustee, with the first such payment due October 1,
1995.
This Debenture is one of the initially authorized issue of
Debentures of the Company in the principal amount of $5,000,000
designated as Series 1995 Registered Subordinated Debentures
(hereinafter sometimes called "Series 1995 Debentures"), all of
like tenor (except as to number and denomination), issued under
and in accordance with, and all equally and ratably entitled to
the benefits of, an Indenture (hereinafter the "Indenture"),
dated as of April _____, 1995, and executed by and between the
Company and M&I FIRST NATIONAL BANK, West Bend, Wisconsin
(hereinafter the "Trustee"), under which additional Debentures
ranking pari passu herewith may be issued, to which Indenture
reference is hereby made for a statement of the rights and
obligations of the Company and of the Trustee and of the rights
of the holders of the Debentures.
The payment of the principal of and interest on this
Debenture is expressly subordinated, as provided in the
Indenture, to the payment of all Senior Debt (as defined in the
Indenture), and by acceptance of this Debenture the holder hereof
agrees, expressly for the benefit of present and future holders
of Senior Debt, to be bound by the provisions of the Indenture.
The Series 1995 Debentures are subject to redemption as a
whole at any time or in part from time to time, at the option of
the Company, upon notice and in the manner and with the effect
provided in the Indenture, and upon payment of the principal
amount thereof and accrued interest thereon to the date fixed for
redemption. In case less than all of the Series 1995 Debentures
at the time outstanding are to be redeemed, the Series 1995
Debentures to be redeemed shall be selected by the Trustee by lot
or redeemed on a pro rata basis.
In case an event of default (as defined in the Indenture)
shall occur and be continuing, the principal of all the
Debentures then outstanding under the Indenture may be declared
due and payable, or may become due and payable in the manner and
with the effect provided in the Indenture.
This Debenture shall be registered as to principal in the
owner's name at the office of the Trustee, and is transferable
only at said office by the registered owner or by his duly
authorized attorney.
THIS DEBENTURE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AND MAY NOT BE RESOLD TO ANY PERSON NOT A RESIDENT
OF THE STATE OF WISCONSIN DURING THE PERIOD FROM
_______________________ THROUGH ________________________. NO
TRANSFER OF THIS DEBENTURE SHALL BE REGISTERED UNLESS THE COMPANY
IS SATISFIED THAT SUCH TRANSFER WILL NOT RESULT IN VIOLATION OF
THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE.
To the extent permitted by and as provided in the Indenture,
modifications or alterations of the Indenture, or of any
supplement to the Indenture (a "Supplemental Indenture"), and of
the rights and obligations of the Company and of the registered
owners of Debentures, may be made at the request of or with the
consent of the Company, and upon the written consent or
affirmative vote of the holders of 60% in aggregate principal
amount of the Debentures then outstanding, given as provided in
the Indenture, and, in case one or more but less than all of the
series of Debentures then outstanding under the Indenture are
thereby affected, upon the written consent or affirmative vote of
the holders of 60% in principal amount of the Debentures of all
series then outstanding that are affected by such modification or
alteration, given as aforesaid; provided that no such
modification or alteration that, in the opinion of the Trustee,
affects its own rights, duties or immunities under the Indenture
may be made without the consent of the Trustee, and provided that
no such modification or alteration shall (a) extend the time of
payment of the principal amount thereof or the rate of interest
thereon, or (b) modify or alter the terms or effect of the
subordination provisions contained in said Indenture, or (c)
change or affect the rights, privileges, or interests of the
holders of Debentures of any one series so as to give the holders
of Debentures of any one or more series any preference over the
holders of Debentures of any other series, or (d) change the
percentage of Debenture holders required to consent to any such
amendment, alteration, modification, or supplement without the
consent of the holders of all of the outstanding Debentures.
Notwithstanding the foregoing, the Company may at any time,
without the consent of the holders of any of the Debentures,
enter into a Supplemental Indenture or Supplemental Indentures
with the Trustee for any of the following purposes: to add to
the covenants or agreements, or surrender any right or power of
the Company under the Indenture; to evidence the succession of
another corporation to the Company; to clarify any ambiguity,
defect or inconsistent provision contained in the Indenture; to
provide for the issuance of additional Debentures under the
Indenture; and to comply with the mandatory provisions of the
Trust Indenture Act of 1939, as amended.
No recourse shall be had for the payment of the principal
of, or the interest on, this Debenture, or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect
of the Indenture, against any incorporator, stockholder, officer
or director, past, present or future, of the Company or of any
successor corporation, whether by virtue of any constitution,
statute or rule of law or by the enforcement of any assessment or
penalty or otherwise, all of such liability being by the
acceptance hereof and as part of the consideration for the issue
hereof expressly released, as provided in the Indenture.
This Debenture shall not become valid or obligatory for any
purpose until this Debenture shall have been authenticated by the
Trustee under the Indenture.
IN WITNESS WHEREOF, MID-PLAINS TELEPHONE, INC. has caused
this Debenture to be signed in its corporate name by its
President or a Vice President, manually or in facsimile, and its
corporate seal or a facsimile thereof to be imprinted hereon and
attested by the manual or facsimile signature of its Secretary or
an Assistant Secretary.
MID-PLAINS TELEPHONE, INC.
Attest:
By:/s/ Fredrick E. Urben By:/s/ Dean W. Voeks
Fredrick E. Urben Dean W. Voeks
Secretary President
[CORPORATE SEAL]
(FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This Debenture is one of the Debentures of the series
designated herein, described in the above referred-to Indenture.
M&I FIRST NATIONAL BANK, Trustee
By:
Authorized Officer
<PAGE>
(FORM OF CERTIFICATE OF REGISTRATION)
CERTIFICATE OF REGISTRATION
Date Registered Holder Registrar
of M&I First
Registration Name Address National Bank
By:
By:
By:
By:
AND WHEREAS, the making and executing of this Indenture and
the issue of Debentures hereby secured have been duly authorized
by the Board of Directors of the Company, pursuant to the
Wisconsin Business Corporation Law, and all things necessary have
been done and performed to make the Debentures, when properly
issued and authenticated hereunder, the valid, binding and legal
obligations of the Company, and the Indenture a valid agreement,
and to secure the performance of the covenants and conditions
herein contained:
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which
the Debentures are authenticated, issued and delivered, and in
consideration of the premises, of the purchase and acceptance of
the Debentures by the holders thereof and of the sum of $1.00 to
it duly paid by the Trustee at the execution of these presents,
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 the
Debentures as follows:
<PAGE>
ARTICLE 1.
FORM, ISSUE, AUTHENTICATION, REGISTRATION,
TRANSFER AND EXCHANGE OF DEBENTURES
1.01 DEBENTURES ISSUABLE IN SERIES. The Debentures may,
at the election of the Board of Directors of the Company, be in
one or more series and shall be designated generally as the
Registered Subordinated Debentures of the Company, with such
further appropriate particular designations added to or
incorporated in or eliminated from such title, for the Debentures
of any particular series, as the Board of Directors of the
Company may determine. Each Debenture shall bear upon the face
thereof the designation so selected for the series to which it
belongs. All Debentures of any one series at any time
simultaneously outstanding shall be identical in respect of the
place or places of payment of principal and of interest, the date
of interest payments, the terms and rate or rates of optional
redemption, if redeemable, the terms of convertibility, if
convertible, and sinking fund or analogous provision (if any);
but Debentures of the same series may be of different
denominations, and Debentures of any one or more series may be of
serial maturities and, if of serial maturities, Debentures of the
same series may differ with respect to dates of maturity, the
rates of interest and the dates of interest payment, the terms
and rate or rates of optional redemption if redeemable, the terms
of convertibility, if convertible, sinking fund or analogous
provision, if any, and in other respects to the extent not
contrary to the provisions of this Indenture.
1.02 PROVISIONS WITH RESPECT TO ALL SERIES. Subject to
the provisions contained in this Indenture with respect to the
Series 1995 Debentures, the Debentures of any series:
(a) Shall bear interest at such rate or rates and be
payable, as to interest and principal, at such time or times, and
at such place or places, as may be determined by the Board of
Directors;
(b) Shall be payable in such coin or currency of the United
States of America as at the time of payment shall be legal tender
for the payment of public and private debts;
(c) May have such additional registration privileges as may
be determined by the Board of Directors;
(d) May be in such denominations as may be determined by
the Board of Directors;
(e) May be limited as to the maximum principal amount
thereof which may be authenticated and delivered by the Trustee
or which may be at any one time outstanding;
(f) May contain provisions for the redemption thereof at
the option of the Company, at such redemption price or prices, at
such time or times, upon such notice, in such manner and upon
such other terms and conditions not inconsistent with the
provisions of Article 5, all as may be determined by the Board of
Directors;
(g) May contain such provisions, if any, for the
establishment of a purchase, sinking, amortization, improvement
or analogous fund therefor, in such amount, at such time or
times, in such manner and upon such other terms and conditions,
and for the retirement or redemption of such Debentures by the
operation of any such fund or otherwise, at such price or prices,
in such amounts, at such time or times, in such manner and upon
such other terms and conditions as may be determined by the Board
of Directors; and
(h) May contain such provisions with respect to serial
maturities, convertibility into other securities of the Company,
anticipation of maturity on the happening of a specified event,
and such other special terms and conditions, not contrary to the
provisions hereof, as may be determined by the Board of
Directors.
1.03 FORM OF DEBENTURES OF ALL SERIES. The Debentures of
any series, other than the Series 1995 Debentures, shall be in
the form set forth or specified in any supplement to this
Indenture (a "Supplemental Indenture") providing for the issuance
of Debentures of such series. Any of the Debentures may be issued
with appropriate insertions, omissions, substitutions and
variations, and may have imprinted thereon such legend or legends
as may be required to comply with any law or with any rules or
regulations pursuant thereto, or with the rules of any stock
exchange or of any governmental commission or agency, or to
conform to general usage; and the Board of Directors, by
resolution, may amend any legends on Debentures then outstanding
so as to comply with such law, rule or regulation or so as to
conform with such usage.
1.04 CERTIFICATION AND DELIVERY OF DEBENTURES. From time
to time Debentures of any series may be executed by the Company,
signed by the President or any Vice President and the Secretary
or any Assistant Secretary with the corporate seal affixed
thereto, any of which signatures or the corporate seal may be in
the form of a facsimile signature or seal, and delivered to the
Trustee, which, upon compliance with the conditions hereinafter
provided, shall certify and redeliver the same on the order of
the Company. Before certifying any Debenture, said Trustee shall
be furnished with such evidence as it may reasonably require that
all requirements of law and of regulatory bodies having
jurisdiction over the issuance thereof have been complied with.
At any time when the Company shall be in default hereunder to the
knowledge of the Trustee, the Trustee shall not authenticate or
deliver any additional Debentures under this Indenture or any
Supplemental Indenture.
In case any officer whose signature (including a facsimile
thereof) appears on any of the Debentures shall cease to be such
officer of the Company before the Debenture so signed shall have
been authenticated by the Trustee, such Debentures may,
nevertheless, be authenticated and delivered by the Trustee, and,
upon such authentication and delivery, shall, when issued, be as
binding upon the Company as though the person who signed the same
had continued to be such officer of the Company.
1.05 CERTIFICATION ESSENTIAL AND CONCLUSIVE. Certification of
said Debentures shall be essential and conclusive. Only such
Debentures as shall bear the certificate of authentication of the
Trustee shall be entitled to the benefits of the provisions of this
Indenture; such authentication by the Trustee of any of the Debentures
executed as herein provided shall be conclusive evidence that the
Debentures so authenticated have been duly issued, and that the holder
is entitled to the benefit of the provisions of this Indenture.
1.06 REGISTRATION OF DEBENTURES. The Company shall cause
to be kept at the office of the Trustee, or such other office or
offices as the Company may from time to time determine, a
sufficient registry of registerable Debentures issued hereunder,
which at all reasonable times shall be open for inspection by the
Company; and the Trustee, under such reasonable regulations as it
may prescribe, shall register therein all of the Debentures
issued hereunder and such registration shall be noted on the
Debentures by the Trustee.
1.07 TRANSFER OF DEBENTURES. No transfer of any
registered Debentures issued hereunder shall be valid unless made
on the registry maintained by the Trustee by the registered owner
in person or by his duly authorized attorney, and similarly noted
on the Debenture by the Trustee.
1.08 EXCHANGE OF DEBENTURES. Whenever a Debenture or
Debentures issued hereunder shall be surrendered to the Trustee
for exchange, then, upon receipt of written request from the
holder thereof, the Trustee may, in its sole discretion, issue,
and the Trustee shall authenticate and deliver to the
Debentureholder in exchange therefor, a like principal amount of
Debentures, having the same terms and conditions as the
surrendered Debenture or Debentures, in such denomination or
denominations as the holder of the Debenture or Debentures so
surrendered shall request, within the limitations set forth in
the Indenture. All or any Debentures so surrendered for exchange
shall forthwith be canceled by the Trustee and delivered to the
Company. The Company may require such holder to reimburse the
Company and the Trustee for the reasonable expenses and
disbursements incurred in effecting such exchange.
1.09 RECOGNITION OF OWNERSHIP OF DEBENTURES. The Company
and the Trustee may consider and treat the person in whose name
any Debenture issued hereunder shall be registered as the
absolute owner thereof for all purposes whatsoever, and neither
the Company nor the Trustee shall be affected by any notice to
the contrary. Payment of the principal of or interest on any
Debenture to the registered owner thereof, or upon his order,
shall fully discharge the Company with respect thereto to the
extent of the sum so paid. The Company may acquire outstanding
Debentures for resale without effecting the discharge of the
Debentures so acquired.
1.10 LOST, STOLEN OR MUTILATED DEBENTURES. Upon receipt by
the Company and the Trustee of evidence satisfactory to them of
the loss, theft or destruction of any outstanding Debenture
issued hereunder, and of indemnity satisfactory to them, or in
case of the mutilation of any such outstanding Debenture, upon
surrender and cancellation of such Debenture, the Company, in its
sole discretion, may execute and the Trustee may authenticate and
deliver a new Debenture of the same denomination, of like tenor
and dated as of the date interest was last paid on the lost,
stolen, destroyed or mutilated Debenture (to which the Trustee
may add a distinguishing mark) in lieu of such lost, stolen,
destroyed or mutilated Debenture, as the case may be. Upon the
issuance of any substitute Debenture, the Company may, in its
sole discretion, require the payment of a sum sufficient to
reimburse it for any stamps or other governmental charge or other
expense connected therewith, and also such further amount as may
be necessary to defray the cost and expense of the Company and
the reasonable charges of the Trustee in connection with such
substitution.
ARTICLE 2.
FORM, AMOUNT, TERMS AND ISSUE OF
SERIES 1995 DEBENTURES; AUTHENTICATION
AND ISSUE OF DEBENTURES OF OTHER SERIES
2.01 FORM, DATE, RATE OF INTEREST, DENOMINATION AND
LIMITATION OF PRINCIPAL AMOUNT OF INITIAL ISSUE OF DEBENTURES.
The initial issue of Debentures hereunder shall be designated
Series 1995 Registered Subordinated Debentures ("Series 1995
Debentures"), and shall be issuable as registered Debentures,
without coupons, in substantially the form and tenor hereinbefore
recited, in denominations of $500 or any integral multiple
thereof. The Series 1995 Debentures shall be limited to
$5,000,000 in aggregate principal amount at any one time
outstanding hereunder and shall rank equally with any and all
Debentures, of any series, issued under this Indenture.
The Series 1995 Debentures shall have a five- (5-) year
maturity (term), with interest payable each October 1, January 1,
April 1 and July 1. The rate of interest on the Series 1995
Debentures shall be equal to 150 basis points (1.5%) over the
five- (5-) year U.S. Treasury Constant Maturity Yield Rate
(rounded to the nearest .25%) as of June 30, 1995 (but not less
than 8% or greater than 9% per annum).
The five- (5-) year U.S. Treasury Constant Maturity Yield
Rate, utilized to calculate the interest rate payable on the
Series 1995 Debentures, is published by the Federal Reserve in
Statistical Release H.15 (519), "Selected Interest Rates."
Yields on U.S. Treasury securities at "constant maturity" are
provided by the U.S. Treasury and based upon its daily yield
curve. This curve, which relates the yield on a security to its
time to maturity, is based on the closing market bid yields on
actively-traded U.S. Treasury securities in the over-the-counter
market. These market yields are calculated by the U.S. Treasury
from composites of quotations reported by five leading U.S.
government securities dealers to the Federal Reserve Bank of New
York.
The Series 1995 Debentures shall be payable both as to
principal and interest at the office of the Trustee in West Bend,
Wisconsin, or at the office of such other bank or trust company
as may be ordered by resolution of the Board of Directors of the
Company and so designated in any of the said Debentures.
At the option of the Company, evidenced by appropriate
resolution of its Board of Directors, the form of Debenture may
be varied to provide for either the discounting of interest or
the payment of interest at stipulated intervals.
2.02 ISSUANCE OF ADDITIONAL DEBENTURES. Additional
Debentures, other than Series 1995 Debentures, may be issued from
time to time in series under the terms of this Indenture, in
substantially the form and tenor hereinbefore recited, and in
such aggregate amount as is determined by the Board of Directors
of the Company and set forth in one or more Supplemental
Indentures; provided, however, that each additional series of
Debentures shall be differentiated from all previous series by
appropriate designation inscribed thereon, and provided, further,
that no such additional Debentures shall be issued in excess of
the limitations provided in Sections 2.03 and 4.07 of this
Indenture.
Before certifying any such additional Debentures, the
Trustee shall have received the following:
(a) A written order of the Company requesting the
authentication and delivery of a specified principal amount of
Debentures of any designated series.
(b) A resolution of the Board of Directors, authorizing the
authentication and delivery of Debentures of such designated
series in a principal amount not less than the principal amount
specified in such written order of the Company.
(c) A Supplemental Indenture providing for and setting
forth the terms and provisions of such additional series of
Debentures, in form complying with the provisions of Article 2.
Such Supplemental Indenture shall have been executed by the
Company and shall be accompanied by a copy of a resolution of the
Board of Directors, certified by the Secretary or an Assistant
Secretary of the Company, under its corporate seal, authorizing
the execution of such Supplemental Indenture.
(d) An Officers' Certificate stating that the Company is
not in default in the performance of any of the terms or
covenants of this Indenture and that all conditions precedent to
the issuance of said Debentures have been complied with.
(e) An Opinion of Counsel stating that in the opinion of
such counsel (i) the written order of the Company, the resolution
of the Board of Directors, the Supplemental Indenture and
Officers' Certificate so delivered conform to the requirements of
this Section 2.02, (ii) all conditions precedent to the issuance
of said Debentures have been complied with, and (iii) upon the
issuance of such additional Debentures, such Debentures will be
valid and binding obligations of the Company and entitled to the
benefits of this Indenture.
2.03 LIMITATION ON OUTSTANDING PRINCIPAL AMOUNT OF
DEBENTURES. Any other provision of this Indenture
notwithstanding, the maximum aggregate principal amount of
Debentures of all series (either subordinated or unsubordinated)
which may be issued under the Indenture shall be $10,000,000.
ARTICLE 3.
SUBORDINATION OF DEBENTURES
3.01 SUBORDINATION PROVISION. The Company covenants and
agrees, and the holder of each Debenture by acceptance thereof
covenants and agrees, expressly for the benefit of the present
and future holders of Senior Debt that, notwithstanding anything
to the contrary set forth in the Debentures of any series or in
this Indenture, the payment of the principal of or any interest
on the Debentures is expressly subordinated to all Senior Debt of
the Company (as defined in Section 13.01), which may at any time
and from time to time be outstanding, and further that:
(a) Upon any receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, whether
or not pursuant to bankruptcy laws, sale of all or substantially
all of the assets, dissolution, or any other marshalling of the
assets and liabilities of the Company, no amount shall be paid by
the Company, and neither the Trustee nor any Debentureholder
shall be entitled to receive any amount, in respect of the
principal of or interest on any Debenture (other than shares of
stock of the Company, as reorganized and readjusted, or
securities of the corporation provided for by a plan of
reorganization or readjustment, the payment of which is
subordinated to the payment of all Senior Debt which may at the
time be outstanding), unless and until all Senior Debt shall have
been paid in full together with all interest thereon and all
other amounts payable in respect thereof, and in any such event,
any payment or distribution of any kind or character, whether in
cash, property or securities (other than in securities or other
evidences of indebtedness, the payment of which is subordinated
to the payment of all Senior Debt which may at the time be
outstanding), which shall be made upon or in respect of any
Debenture, shall be paid over to the Company for application in
payment of such Senior Debt, pro rata among the holders thereof
in accordance with the order of priority of payment established
by any applicable provisions thereof and by any instrument
whereunder any Senior Debt is issued, unless and until such
Senior Debt shall have been paid and satisfied in full.
(b) In the event of any default in the payment of the
principal (including any sinking fund payments or required
prepayments) of or interest on any Senior Debt, and during the
continuance of any such default, no amount shall be paid by the
Company, and neither the Trustee nor any Debentureholder shall be
entitled to receive any amount, in respect of the principal of or
interest on any Debenture.
(c) In case any one or more of the defaults specified in
Section 6.01, other than those of the nature specified in
Paragraph (a) above, shall happen and be continuing, no amount
shall be paid by the Company, and neither the Trustee nor any
Debentureholder shall be entitled to receive any amount in
respect of the principal of or interest on any Debenture, except
at the expressed maturity thereof, subject to Paragraph (a)
above, other than current interest payments as provided in such
Debenture, unless and until all Senior Debt shall have been paid
in full together with all interest thereon and all other amounts
payable in respect thereof.
(d) Unless and until the happening of any event under
Paragraphs (a) or (b) of this Section 3.01 which requires
otherwise, the Company shall pay both principal and interest on
the Debentures as the same respectively mature, whether by
acceleration or otherwise; provided, however, that so long as any
Senior Debt is outstanding, no payment of principal or interest
due by reason of acceleration pursuant to any of the provisions
of this Indenture shall be made except out of the proceeds of the
issue of capital stock or Capital Debt or junior Capital Debt
which is subordinated and junior in right with respect to the
general assets of the Company to Senior Debt at least to the same
extent as are the Debentures issued hereunder, unless and until
all Senior Debt is paid (except to the extent that the consent of
holders of Senior Debt makes such payment unnecessary).
(e) Upon the occurrence of any of the events enumerated in
Paragraph (a) above, claims or proofs of claim may be filed by or
on behalf of any Debentureholder or the Trustee, but no such
claim or proof of claim shall be filed by or on behalf of such
Debentureholder or the Trustee which shall assert any right on
the part of such Debentureholder or the Trustee to receive any
payments in respect of the principal of or interest on the
Debentures, except subject to the payment in full of all Senior
Debt for which claims or proofs of claim are duly filed.
(f) No present or future holders of Senior debt shall at
any time in any way be prejudiced, or their rights to enforce
subordination impaired, by any act or failure to act on the part
of the Company or any such holder, or by any noncompliance by the
Company with the terms and provisions of this Indenture,
regardless of any knowledge thereof such holders may have or
otherwise be charged with.
3.02 EFFECT OF SUBORDINATION UPON MONEYS DEPOSITED WITH
THE TRUSTEE. Any deposit of moneys by the Company with the
Trustee (whether or not stated to be in trust) for the payment of
principal of or interest on the Debentures shall be subject to
the provisions of Section 3.01, except that, notwithstanding the
provisions of Section 3.01 or any other provision of this
Indenture, any such deposit may be applied by the Trustee to the
payment of such principal or interest to the Debentureholders
entitled thereto, provided that the payment of such principal or
interest by the Company would not be prohibited by the provisions
of Section 3.01 if made on the later of the date of such deposit
or the fortieth (40th) day preceding the date such principal or
interest is due.
3.03 NOTICE TO TRUSTEE OF SENIOR DEBT AND DEFAULT THEREON.
Subject to the provisions of Section 7.03, but notwithstanding
the provisions of Section 3.01 or any other provision of this
Indenture, the Trustee shall not be charged with the knowledge of
the existence of any Senior Debt, or of any default in the
payment of principal of or interest on any Senior Debt, unless
and until the Trustee shall have received written notice thereof.
ARTICLE 4.
COVENANTS OF THE COMPANY
4.01 TO PAY DEBENTURES WHEN DUE. The Company hereby
covenants and agrees that it will pay or cause to be paid duly
and punctually the principal of and interest on each of the
Debentures at the times and place specified in the Debentures and
in the manner provided in this Indenture. Payments of interest,
other than interest payable upon the maturity or redemption of
any Debenture, shall be made to or upon written order of the
registered holder of the Debenture. Payments of principal due
upon the maturity or redemption of any Debenture shall be made
only upon the surrender of the Debenture.
In the event that any Debenture issued hereunder shall not
be presented for payment when the principal thereof becomes due,
either at maturity or otherwise, and the Company shall, on or
before the day preceding the day when such Debenture becomes due,
have deposited with the Trustee in trust for that purpose funds
sufficient to pay the principal of such Debenture and interest to
the date fixed for payment of the Debenture, then, and in every
such case, all liability of the Company to the holder of such
Debenture shall forthwith cease, and it shall be the duty of the
Trustee to hold such funds for the benefit of the holder of such
Debenture. When and as paid, all Debentures shall be surrendered
to the Trustee and shall be by it canceled forthwith. The Trustee
shall make and deliver to the Company a certificate setting forth
the respective numbers and principal amounts of each of the
Debentures thus canceled by it; provided, however, that nothing
contained in this Indenture shall be construed to prevent the
Company from repurchasing any outstanding Debenture prior to
maturity and reselling such Debenture under the terms and
conditions as originally issued.
4.02 CONTINUED OPERATION OF COMPANY. The Company
covenants that while any of the Debentures issued pursuant to
this Indenture remain outstanding, it will maintain its corporate
existence and carry on and transact its business in accordance
with the laws of the State of Wisconsin, and the rules,
regulations and orders of all governmental authorities which have
jurisdiction over its business.
4.03 TO GIVE TRUSTEE REASONABLE ACCESS TO BOOKS. The
Trustee shall at all reasonable and appropriate times and upon
reasonable advance written notice have full access to the books
and records of the Company relative to any Debentures outstanding
hereunder.
4.04 INTERIM FINANCIAL STATEMENTS. Unless this
requirement be waived by the Trustee, the Company shall furnish
to the Trustee within sixty (60) days following the end of each
fiscal quarter, other than the last fiscal quarter of each fiscal
year, financial statements containing a balance sheet as of the
end of said fiscal quarter.
4.05 ANNUAL AUDITED FINANCIAL STATEMENTS. Within one
hundred twenty (120) days following the last day of each fiscal
year of the Company, the Company shall furnish to the Trustee and
to the Commissioner of Securities of the State of Wisconsin,
financial statements of the Company for said fiscal year
containing a balance sheet as of the end of said fiscal year and
an income statement for said fiscal year, certified by
independent public accountants.
4.06 LIMITATION ON DIVIDENDS. So long as any of the
Debentures shall be outstanding, the Company shall not declare or
pay any dividend on its capital stock of any class or make any
distribution to any stockholders (other than dividends or
distributions payable solely in common stock of the Company),
except from consolidated retained earnings of the Company in
excess of $2,500,000.
4.07 LIMITATION ON BORROWING. So long as any of the
Debentures issued under this Indenture shall be outstanding, the
Company shall not issue any additional Debentures hereunder if
such issuance would violate the terms and conditions of any
document, instrument or agreement evidencing the Company's Senior
Debt.
4.08 TO PAY COMPENSATION AND EXPENSES TO TRUSTEE. The
Company covenants and agrees, from time to time, upon demand, to
pay out of its own funds compensation of the Trustee and all
expenses of the Trustee arising out of this Indenture, including
counsel fees.
4.09 NOT TO EXTEND INTEREST. In order to prevent any
accumulation of claims for interest after the interest due date,
the Company will not directly or indirectly extend or consent to
the extension of the time for the payment of any interest on any
of the Debentures, and will not directly or indirectly be a party
to or approve any such arrangement by purchasing or funding said
interest payments or in any other manner, except pursuant to a
plan presented to all of the holders of the Debentures then
outstanding. In case any such interest payment shall be extended
or funded in violation of this Section 4.09, whether or not with
the consent of the Company, such interest payment so extended or
funded shall not be entitled, in case of default hereunder, to
the benefits of this Indenture, except subject to the prior
payment in full of the principal of all the Debentures then
outstanding and of all interest payments which shall not have
been so extended or funded.
4.10 LIMITATIONS ON ISSUANCE OF DEBENTURES. The Company
shall not offer or sell any Debentures to the public except in
accordance with all applicable state and federal securities laws.
The Company shall not submit to the Trustee for authentication,
or offer, issue or sell any Debenture during the continuation of
any event of default hereunder.
4.11 NOTIFICATION OF CHANGE OF OFFICERS. The Company will
promptly notify the Trustee in the event of (a) the election or
appointment of any new officer of the Company, (b) any change in
any officer of the Company, (c) any change in the officers of the
Company who are authorized to execute Debentures, or (d) any
change in the officers of the Company who are authorized to
request the authentication of Debentures by the Trustee.
4.12 FINANCIAL INFORMATION TO BE FURNISHED TO
DEBENTUREHOLDERS. The Company shall furnish to each holder of
Debentures within one hundred twenty (120) days following the end
of each fiscal year a balance sheet and income statement for said
fiscal year, including the certificate of the independent public
accountants who audited said balance sheet and income statement.
4.13 LIMITATIONS ON INCREASE OF INTEREST RATE ON OUTSTANDING
DEBENTURES. The Company will not increase the rate of interest
payable on outstanding Debentures of any maturity of any series
from the issuance thereof until maturity except by Supplemental
Indenture entered into pursuant to Article 12 hereof, and such
increase shall be applicable to all then outstanding Debentures
of such maturity and series.
ARTICLE 5.
REDEMPTION OF DEBENTURES
5.01 OPTIONAL REDEMPTION OF SERIES 1995 DEBENTURES. The
Series 1995 Debentures may be redeemed as a whole at any time or
in part from time to time, at the option of the Company and upon
payment of the principal amount of the Debentures so redeemed,
together in each case with interest accrued to the date fixed for
redemption. In case less than all of the Series 1995 Debentures
at the time outstanding are to be redeemed, the Series 1995
Debentures to be redeemed shall be selected by the Trustee by lot
or on a pro rata basis.
5.02 REDEMPTION OF DEBENTURES OF ALL SERIES TO BE IN
ACCORDANCE WITH ARTICLE 5. The redemption of Debentures of any
series, except as otherwise provided in a Supplemental Indenture
creating any other series, shall be effected in accordance with
the following provisions of this Article 5.
5.03 MAILING OF NOTICE OF REDEMPTION. If the Company
shall elect to exercise the right of redemption respecting any
Debentures, it shall, not less than thirty (30) days prior to the
redemption date, mail, or cause to be mailed, a notice thereof to
the holder of each registered Debenture to be redeemed at the
last address of such holder shown in the registry.
Such notice shall state the redemption price, the time and
place of payment and redemption, that interest on the Debentures
designated in such notice of redemption shall cease to accrue on
the date so designated, and such notice shall require that the
Debentures to be redeemed be surrendered on or after such
redemption date for payment and redemption at the office of the
Trustee in West Bend, Wisconsin.
5.04 METHOD OF SELECTION OF DEBENTURES TO BE REDEEMED.
If the Company shall elect to redeem less than all of the
Debentures of any series then outstanding, it shall at least ten
(10) days before the first day upon which notice of redemption is
to be first mailed (unless a shorter notice shall be accepted by
the Trustee), notify the Trustee of the principal amount of
Debentures of such series to be redeemed, specifying (unless such
notice is to be given by the Trustee) the date on which it is
proposed that notice of such redemption will be first mailed, and
thereupon the Trustee shall select by lot or on a pro rata basis
the Debentures of such series to be redeemed and shall notify the
Company of the result thereof.
5.05 EFFECTS OF CALL FOR REDEMPTION. Notice of redemption
having been so given as aforesaid, the Debentures (or pro rata
portion thereof) specified in such notice shall become due and
payable on the date, at the redemption price, together with
accrued interest to such date, and at the place stated in such
notice, and the Company covenants that they will be paid
accordingly by it, upon surrender thereof.
The holders of the Debentures, by accepting the same, agree
upon any such notice of redemption to receive payment of the
Debentures upon the date fixed for redemption, at the redemption
price then applicable, together with accrued interest to such
date fixed for redemption all as herein provided.
When the notice hereinbefore mentioned shall have been duly
mailed and all charges and expenses of the Trustee in connection
with such redemption, or otherwise hereunder, shall have been
fully paid or provided for, the Company and the Trustee shall be
privileged to consider such Debentures redeemed from the holder
or holders thereof, and interest on such Debentures shall cease
on the date specified for such redemption, and thereafter such
Debentures shall not be entitled to any benefit of or from this
Indenture, other than the payment of the redemption price,
together with accrued interest to such date. In case any question
shall arise as to whether any such notice shall have been
sufficiently given, or such redemption effected, such question
shall be decided by the Trustee, and the decision of the Trustee
shall be final and binding upon all parties in interest.
5.06 REDEEMED DEBENTURES TO BE DESTROYED AND NOT REISSUED.
All Debentures redeemed and paid, as provided in this Article 5,
shall be canceled by the Trustee and thereafter delivered to the
Company. No Debentures so redeemed shall be reissued, nor shall
any Debentures be issued in lieu thereof.
ARTICLE 6.
DEFAULTS AND REMEDIES
6.01 EVENTS OF DEFAULT DEFINED. The following events
shall be events of default under this Indenture, and the term
"event of default" or "events of default" shall mean, whenever
the same is used in this Indenture or in the Debentures, one or
more of the following events:
(a) Default in the payment of interest on any of the
Debentures issued under this Indenture, when and as such interest
shall have become due and payable, whether at fixed maturity or
otherwise, and whether or not the failure to make payment of such
interest was required by the provisions of Section 3.01 hereof,
which default shall have continued for a period of not less than
thirty (30) days;
(b) Default in the payment of the principal of any of the
Debentures when due, whether at fixed maturity or otherwise, and
whether or not the failure to make payment of such principal was
required by the provisions of Section 3.01 hereof, which default
shall have continued for a period of not less than thirty (30)
days;
(c) Default in the due observance or performance of any
other covenant or condition in this Indenture required to be kept
or performed by the Company, which default shall have continued
for a period of not less than ninety (90) days after written
notice thereof shall have been given to the Company by the
Trustee or by the holders of at least a majority in aggregate
principal amount of the Debentures at such time outstanding
hereunder;
(d) The elapsing of a period of not less than sixty (60)
days after:
(i) the adjudication of the Company as a bankrupt by
a decree of a court of competent jurisdiction;
(ii) the entry by such a court of an order approving a
petition seeking reorganization of the Company
under the Federal Bankruptcy Code or any other
applicable law or statute of the United States of
America or any state thereof; or
(iii) the appointment by order of such a court of
a receiver or receivers of the Company or of
all or any substantial part of the property
of the Company upon the application of any
creditor in any insolvency or bankruptcy
proceeding;
provided that any such order or decree shall not have been
vacated or set aside, but that such period of not less than sixty
(60) days shall not include any period during which any such
decree or order shall be stayed upon appeal or otherwise;
(e) The filing by the Company of a petition for voluntary
bankruptcy or the making by it of a general assignment for the
benefit of creditors, or the consenting by it to the appointment
of a receiver or receivers of all or substantially all of the
property of the Company; or the filing by the Company of a
petition or answer seeking reorganization under the Federal
Bankruptcy Code or any other applicable law or statute of the
United States of America or any state thereof, or seeking the
benefits of any insolvency act; or the admission in writing by
the Company of its inability to pay its debts generally as they
become due.
6.02 NOTICE OF DEFAULT TO DEBENTUREHOLDERS. The Trustee
shall give notice of the happening of all events of default of
which it has notice (a) within ninety (90) days after the
occurrence thereof, or (b) if the Trustee does not have notice of
such default within such period, at the earliest practicable date
within thirty (30) days after the Trustee shall have received
notice of such default unless such defaults shall have been cured
before the giving of such notice, and by letter directed to all
registered Debentureholders as the names and addresses appear
upon the registry maintained by the Trustee; provided, that,
except in the case of default in the payment of the principal of
or interest on any of the Debentures, the Trustee shall be
protected in withholding such notice if and so long as the Board
of Directors or responsible officers of the Trustee in good faith
determine that the withholding of such notice is in the interests
of the Debentureholders.
6.03 ACCELERATION OF MATURITY UPON EVENT OF DEFAULT;
WAIVER OF DEFAULT AND RESCISSION OF DECLARATION OF MATURITY. If
any one or more events of default shall occur and be continuing,
then and in each and every such case during the continuance of
such event of default, unless the principal of all the Debentures
shall have already become due and payable, the Trustee or the
holders of twenty-five percent (25%) in aggregate principal
amount of the Debentures at the time outstanding may, and upon
the written request of the holders of a majority in principal
amount of Debentures at such time outstanding the Trustee shall,
by notice in writing delivered to the Company, declare the
principal of all Debentures then outstanding hereunder to be due
and payable immediately, and upon any such declaration the same
shall become and shall be immediately due and payable.
This provision, however, is subject to the condition that
if, at any time after the principal of the Debentures shall have
been so declared due and payable, and before any judgment or
decree for the payment of the moneys due shall have been obtained
or entered as hereinafter provided, all arrears of interest upon
all the Debentures (with interest to the extent permitted by law
on overdue installments of interest at the rate borne by the
Debentures) and all expenses of the Trustee and all other sums
which may be due hereunder, except the principal of such
Debentures as shall not have become due and payable by their
terms, shall be paid by the Company or be provided for by the
deposit with the Trustee in trust for that purpose of a sum
sufficient to pay the same, and any and all other defaults as
aforesaid (if any) shall have been waived by the holders of at
least sixty-six and two-thirds percent (66 2/3%) in aggregate
principal amount of the Debentures at the time outstanding, then
and in every such case the holders of a majority in aggregate
principal amount of the Debentures then outstanding, by written
notice to the Company and to the Trustee, may waive such default
and rescind and annul such declaration and its consequences; but
no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default, or shall impair any right
consequent thereon.
6.04 COVENANT OF COMPANY TO PAY TRUSTEE WHOLE AMOUNT DUE
ON DEBENTURES ON DEFAULT IN PAYMENT OF INTEREST OR PRINCIPAL.
The Company covenants that (a) in case default shall be made in
the payment of interest on any of the Debentures at any time
outstanding under this Indenture, and the default in the payment
of such interest shall have continued for the period of thirty
(30) days, or (b) in case default shall be made in the payment of
the principal of any of the Debentures when the same shall have
become payable, whether upon maturity of said Debentures or upon
redemption or upon acceleration as authorized by this Indenture,
or otherwise, then, upon the demand of the Trustee, the Company
will, subject to the provisions of Article 3, pay to the Trustee
in trust for the benefit of the holders of the Debentures then
outstanding, the whole amount that then shall have become due and
payable on all such Debentures for principal or interest, or
both, as the case may be, with interest upon the overdue
principal and (to the extent permitted by law) installments of
interest at the rate borne by the Debentures; and, in addition
thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including a reasonable
compensation to the Trustee, its agents, attorneys and counsel,
and any expenses or liabilities incurred by the Trustee
hereunder.
Until such demand is made by the Trustee, the Company may
pay, or cause to be paid, the principal of and interest on any
Debenture to the registered owner who shall be deemed to be the
absolute owner thereof and the Company shall not be affected by
any notice to the contrary, whether or not such Debenture be
overdue.
6.05 RIGHT OF TRUSTEE TO RECOVER JUDGMENT, FILE PROOF OF
CLAIM. In case the Company shall fail to pay forthwith such
amounts upon such demand, pursuant to Section 6.04, the Trustee,
in its own name and as Trustee hereunder, shall be authorized,
entitled and empowered, subject to the provisions of Article 3,
to institute any action or proceedings at law or in equity for
the collection of the sums so due and unpaid, and may prosecute
any such action or proceeding to judgment or final decree, and
may enforce any such judgment or final decree against the Company
or any other obligor on the Debentures, and collect in the manner
provided by law, out of the property of the Company or any other
obligor on the Debentures wherever situated, the moneys adjudged
or decreed to be payable.
Subject to the provisions of Article 3, in case there shall
be pending proceedings for the bankruptcy or for the
reorganization under the Federal Bankruptcy Code, or in
connection with the insolvency of the Company or any other
obligor on the Debentures, or in case a receiver shall have been
appointed for its or their property, or in case of any other
judicial proceedings relative to the Company or any other
obligor, its or their creditors or its or their property, the
Trustee, irrespective of whether the principal of the Debentures
shall then be due and payable as therein expressed or by
acceleration or otherwise, and irrespective of whether the
Trustee shall have made any demand pursuant to the provisions of
Section 6.04, shall be entitled and empowered, by intervention in
such proceedings or otherwise, to file such proofs of claim and
other papers and documents as may be necessary or advisable in
order to have the claims of the Trustee and of the
Debentureholders allowed in any such judicial proceedings
relative to the Company or other obligor on the Debentures.
With respect to any claim authorized under this Section
6.05, the Trustee shall collect and receive any moneys or other
property payable or deliverable on any such claim, and to
distribute the same after the deduction of its charges and
expenses; and any receiver, assignee or trustee in bankruptcy or
trustee in reorganization under bankruptcy laws is hereby
authorized by each of the Debentureholders 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 Debentureholders,
to pay to the Trustee any amount due if for compensation and
expenses, including counsel fees incurred by it to the date of
such distribution.
All rights of action and of asserting claims under this
Indenture, or under any of said Debentures, may be enforced by
the Trustee without the possession of any of the Debentures, or
the production thereof at any trial or other proceeding relative
thereto, and any such suit or proceeding instituted by the
Trustee shall be brought in its name as Trustee, and any recovery
of judgment shall be for the ratable benefit of the holders of
said Debentures.
6.06 DISCONTINUANCE OF PROCEEDINGS BY TRUSTEE. In case
the Trustee shall have proceeded to enforce any right under this
Indenture, and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely
to the Trustee, then and in every such case the Company and the
Trustee shall be restored respectively to their several positions
and rights hereunder, and all rights, remedies and powers of the
Trustee shall continue as though no such proceeding had been
taken.
6.07 RIGHTS OF HOLDERS OF MAJORITY IN PRINCIPAL AMOUNT OF
DEBENTURES TO DIRECT TRUSTEE. The holders of not less than a
majority in principal amount of the Debentures at the time
outstanding may direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee hereunder,
or of exercising any trust or power hereby conferred upon the
Trustee.
6.08 LIMITATION ON SUITS BY HOLDERS OF DEBENTURES. No
holder of any Debenture issued hereunder shall have any right, by
virtue of or by availing of any provision of this Indenture, to
institute any suit, action or proceeding, in equity or at law,
for the collection of any sum due from the Company hereunder on
account of principal or interest, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless
(a) such holder previously shall have given to the Trustee
written notice of default and of the continuance thereof, and (b)
the holders of a majority in aggregate principal amount of the
Debentures then outstanding shall have made written request upon
the Trustee to institute such action, suit or proceeding in its
own name, and shall have offered to the Trustee reasonable
indemnity and security against the costs, expenses and
liabilities to be incurred therein or thereby, and (c) the
Trustee for sixty (60) days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused
to institute any such action, suit or proceeding, it being
understood and intended, and being expressly covenanted by the
taker and holder of every Debenture issued hereunder with every
other taker and holder and the Trustee, that no one or more
holders of Debentures 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 the
holders of any other of such Debentures, or to obtain or seek to
obtain priority over or preference to any other such holder, or
to enforce any rights under this Indenture, except in the manner
herein provided and for the equal, ratable and common benefit of
all holders of outstanding Debentures.
For the protection of the Debentureholders and the
enforcement of the provisions set forth in this Section 6.08,
each and every Debentureholder and the Trustee shall be entitled
to such relief as can be given either at law or in equity.
6.09 RIGHT OF HOLDERS OF DEBENTURES TO SUE FOR PRINCIPAL
AND INTEREST WHEN DUE. Nothing contained in this Indenture or in
the Debentures, however, shall affect or impair, without the
consent of the Debentureholder concerned, the right of any
Debentureholder, which is unconditional and absolute, to receive
payment of the principal of and interest on the Debentures on or
after the respective due dates expressed in the Debentures, or
affect or impair the right, which is also absolute and
unconditional, of the holders of the Debentures to institute suit
for the enforcement of any such payment on or after such
respective dates by virtue of the contract embodied in the
Debentures, and not by virtue of or by availing of any provision
of this Indenture; provided, however, that the provisions of this
Section 6.09 are subject to the provisions of Article 3.
6.10 DEFAULT NOT WAIVED BY DELAY. No delay or omission on
the part of the Trustee or of any holder of any of the Debentures
to exercise any right or power accruing upon the happening of an
event of default shall be construed to be a waiver of such
default or an acquiescence therein.
6.11 APPLICATION OF MONEYS COLLECTED BY TRUSTEE. Subject to
the provisions of Article 3, any moneys collected by the Trustee
shall be applied in the order following, at the date fixed by the
Trustee for the distribution of such moneys, upon presentation of
the several Debentures, and stamping thereon the payment if only
partially paid, and upon surrender thereof if fully paid:
FIRST. To the payment of costs and expenses, including
reasonable compensation to the Trustee, its agents, attorneys and
counsel, and of all expenses and advances made by the Trustee and
all liabilities incurred by the Trustee without negligence or bad
faith;
SECOND. In case the principal of none of the outstanding
Debentures shall have become due, to the payment of the interest
in default, together with interest (to the extent permitted by
law) on the overdue installments at the rate borne by the
Debentures; such payments of interest in default together with
interest thereon to be made in the order of the maturity of such
defaulted interest installments ratably to the persons entitled
thereto, without discrimination or preference;
THIRD. In case the principal of any of the outstanding
Debentures shall have become due, by declaration or otherwise, to
the payment of the whole amount then owing and unpaid upon any of
the Debentures then outstanding for principal and interest, with
interest on the overdue principal and (to the extent permitted by
law) on installments of interest at the rate borne by the
Debentures; and, in case such moneys shall be insufficient to pay
in full the whole amount so owing and unpaid upon the said
Debentures, then to the payment of such principal and interest,
without preference or priority of principal or of any installment
of interest over any other installment of interest, ratably to
the aggregate of such principal and accrued and unpaid interest.
Notice of any such proposed distribution of interest or
principal shall be given by the Trustee in such manner as the
Trustee in its discretion shall determine.
ARTICLE 7.
CONCERNING THE TRUSTEE
7.01 TRUSTEE'S ACCEPTANCE. The Trustee hereby accepts
this Indenture and agrees to carry out the same according to its
terms and conditions.
7.02 TRUSTEE'S QUALIFICATIONS. The Trustee shall at all
times be a bank or trust Company which maintains an office and
place of business in the State of Wisconsin, and which shall at
all times be a corporation organized and doing business under
such laws to exercise corporate trust powers, subject to
supervision or examination by Federal or state authority, and
having combined capital and surplus of no less than $10,000,000.
If the Trustee, or any successor to it hereunder shall, at any
time, cease to be eligible under the standards prescribed in this
Section 7.02, it shall resign as Trustee within thirty (30) days
thereafter.
7.03 TRUSTEE'S LIABILITY.
(a) The Trustee, prior to the occurrence of an event of
default and after the curing of all events of default which may
have occurred, undertakes to perform such duties as are
specifically set forth in this Indenture. In case of an event of
default occurring (which has not been cured), the Trustee shall
exercise such of the rights and powers vested in it by this
Indenture, and 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.
(b) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct,
except that:
(i) Prior to the occurrence of an event of default
and after the curing of all events of default
which may have occurred, the duties and
obligations of the Trustee shall be determined
solely by the express provisions of this
Indenture, and the Trustee shall not be liable
except for the performance of such duties and
obligations as are specifically set forth in this
Indenture, and no implied covenants or
obligations shall be read into this Indenture
against the Trustee; and in the absence of bad
faith on the part of the trustee, the Trustee may
conclusively rely, as to the truth of the
statements and correctness of the opinions
expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming
to the requirements of this Indenture; but, in
the case of any such certificates or opinions
which by any provision hereof are specifically
required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same
to determine whether or not they conform to the
requirements of this Indenture.
(ii) The Trustee shall not be liable for any error in
judgment made in good faith by a responsible
officer or officers of the Trustee, unless it
shall be proved that the Trustee was negligent in
ascertaining the pertinent facts.
(iii) The Trustee shall not be liable with respect
to any action taken or omitted to be taken
by it in good faith in accordance with the
direction of the holders of not less than a
majority in aggregate principal amount of
the Debentures at the time outstanding
relating to the time, method and place of
conducting any proceeding for any remedy
available to the Trustee, or exercising any
trust or power conferred upon the Trustee
under this Indenture.
(c) None of the provisions contained in this Indenture
shall require the Trustee to expend or risk its own funds, or
otherwise to incur personal financial liability in the
performance of any of its duties or in the exercise of any of its
rights or powers, if there is reasonable ground for believing
that the repayment of such funds or liability is not reasonably
assured to it under the terms of this Indenture or by other
reasonable security or indemnity.
(d) The Trustee may rely, and shall be protected in acting
or refraining from acting, upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, debenture, coupon or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties.
(e) Any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an instrument
signed in the name of the Company by the President or any Vice
President and the Secretary or an Assistant Secretary or the
Treasurer or an Assistant Treasurer (unless other evidence in
respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors of the Company may be
evidenced to the Trustee by a copy thereof certified by the
Secretary or an Assistant Secretary of the Company.
(f) The Trustee may consult with counsel, and any Opinion
of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered by it
hereunder in good faith and in accordance with such Opinion of
Counsel.
(g) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request, order or direction of any of the Debentureholders,
pursuant to the provisions of this Indenture, unless such
Debentureholders shall have offered to the trustee reasonable
security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby.
(h) The Trustee shall not be liable for any action taken by
it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this
Indenture.
(i) The recitals contained herein and in the Debentures
shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for the correctness of the same. The
Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debentures. The Trustee
shall not be accountable for the use or application by the
Company of any of the Debentures or of the proceeds thereof.
(j) Except as otherwise provided in the Indenture, whenever
in the administration of the provisions of this Indenture the
Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting of
any action hereunder, such matter (unless other evidence in
respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be
deemed to be conclusively proved and established by a certificate
signed by the President or any Vice President and by the
Secretary or an Assistant Secretary of the Company and delivered
to the Trustee, and such certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall
constitute conclusive authority for any action taken, suffered or
omitted by it under the provisions of this Indenture upon the
good faith reliance thereon.
(k) The Trustee shall not be required to take notice or be
deemed to have notice or knowledge of any default hereunder
unless specifically notified in writing of such default by the
holders of not less than twenty-five percent (25 %) of the
principal amount of the Debentures then outstanding, and all
notices or other instruments required by this Indenture to be
delivered to the Trustee must, in order to be effective, be
delivered at the office of the Trustee in West Bend, Wisconsin.
7.04 RIGHTS OF TRUSTEE.
(a) The Trustee is authorized at any time to permit any
Debentureholder to inspect any statement or certificate filed
with the Trustee under the terms of this Indenture.
(b) The Trustee may buy, sell, own, hold and deal in any of
the Debentures hereunder, and may initiate or join in any action
which any Debentureholder may be entitled to take, with like
effect as if the Trustee were not a party to this Indenture, and
may act as a depositary of, or as a member of, any committee
formed for the protection of the Debentureholders.
(c) The Trustee may buy, sell, own, hold and deal in any of
the notes and other evidences of indebtedness of the Company, and
may maintain any and all other general banking and business
relations with the Company, with like effect and in the same
manner as if the Trustee were not a party to this Indenture.
7.05 POWERS OF TRUSTEE CUMULATIVE. All powers and
remedies given by this Indenture to the Trustee or to the
Debentureholders shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any other powers and remedies
available to the Trustee or the holders of the Debentures. Every
such power and remedy may be exercised from time to time, and as
often as shall be deemed expedient, by the Trustee or by the
debentureholders.
7.06 COMPENSATION OF TRUSTEE. The Trustee shall be
entitled to 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), and such compensation, as well as the reasonable
compensation of its counsel, and all other reasonable expenses
incurred by the Trustee hereunder, the Company agrees to pay
promptly on demand from time to time, as such services shall be
rendered and as such expenses shall be incurred. In case of
default of such payment by the Company, the Trustee shall have a
lien therefor on any moneys held by the Trustee hereunder prior
to any rights therein of the holders of the Debentures. The
Company also agrees to indemnify the Trustee for, and hold it
harmless against, any loss, liability or expense (including all
costs and expenses of defending against any such claim) incurred
without negligence or bad faith on the part of the Trustee,
arising out of or in connection with this Indenture.
7.07 RESIGNATION OF TRUSTEE.
(a) If the Trustee has or shall hereafter acquire any
conflicting interest within the meaning of Section 310(b)(1) to
(9) inclusive of the Trust Indenture Act of 1939, as amended, it
shall, within ninety (90) days after ascertaining that it has
such conflicting interest, either eliminate such conflicting
interest or resign, such resignation to become effective upon the
appointment of a successor trustee and such successor's
acceptance of such appointment, and the Company shall take prompt
steps to have a successor appointed in the manner provided in
this Section 7.07.
(b) In the event that the Trustee shall fail to comply with
the provisions of Paragraph (a) of this Section 7.07, the Trustee
shall, within ten (10) days after the expiration of such ninety
(90) day period, transmit notice of such failure to the
Debentureholders and the Company in the manner and to the extent
provided in Section 6.02 hereof.
(c) The Trustee may at any time resign by giving thirty
(30) days written notice to the Company and to the holders of all
outstanding Debentures, and a successor trustee may be appointed
either by the Company or on the application of any
Debentureholder, the Trustee, or other party in interest to the
Circuit Court for Dane County, Wisconsin, if the Company shall
fail to appoint a successor trustee within a reasonable time, on
such notice as the court may require.
7.08 REMOVAL OF TRUSTEE. The Trustee may be removed at
any time by an instrument in writing signed by the holders of at
least fifty percent (50%) in aggregate principal amount of the
Debentures then outstanding. In that event, a successor trustee
shall be appointed under the provisions of Paragraph (c) of
Section 7.07.
7.09 SUCCESSOR TRUSTEE. Upon the appointment of a new
trustee, the Trustee hereunder shall turn over to the successor
trustee its books and records as Trustee hereunder. The successor
trustee shall have the same powers, rights, duties and
liabilities as the original Trustee.
7.10 TO KEEP RECORD OF NAMES AND ADDRESSES AND TO FURNISH TO
COMPANY UPON DEMAND. The Trustee shall keep a complete list of
the names and addresses of all purchasers of Debentures and
shall, within three (3) days following receipt of a demand for
the same from the Company, furnish to the Company a complete list
of the names and addresses of all purchasers of Debentures which
are outstanding according to the records of the Trustee.
ARTICLE 8.
CONSOLIDATION, MERGER AND SALE
8.01 CONSOLIDATION MERGER, SALE OR CONVEYANCE PERMITTED.
Nothing contained in this Indenture or in any of the Debentures
issued hereunder shall prevent any consolidation or merger of the
Company with or into any other corporation or corporations, or
successive consolidations or mergers in which the Company or its
successor or successors shall be a party or parties, or shall
prevent any sale or conveyance of the property of the Company, as
an entirety or substantially as an entirety, to any other
corporation authorized to acquire the same; provided, however,
and the Company covenants and agrees, that upon any such
consolidation, merger, sale or conveyance the due and punctual
payment of the principal of and interest on all of the Debentures
issued hereunder, according to their tenor, and the due and
punctual performance of all of the covenants and conditions of
this Indenture shall be expressly assumed by the corporation
formed by such consolidation or the corporation into which the
Company shall have been merged or the corporation acquiring such
property.
8.02 ASSUMPTION OF OBLIGATION OF COMPANY BY SUCCESSOR
COMPANY OR TRANSFEREE. In case of any such consolidation, merger
sale or conveyance, and in case the successor corporation shall
have assumed by instrument in writing, executed and delivered to
the Trustee and satisfactory in form to the Trustee, the due and
punctual payment of the principal of and interest on all of the
Debentures issued hereunder and the due and punctual performance
of all of the covenants and conditions of this Indenture, such
successor corporation shall succeed to the Company as a party
hereto with the same effect as if it had been named herein as
such party; and such successor corporation thereupon may cause to
be signed and may issue, either in its own name or in the name of
the Company, any or all of such Debentures issuable hereunder
which theretofore shall not have been signed by the Company and
delivered to the Trustee; and, upon the order of said successor
corporation, in lieu of the Company, and subject to all the
conditions herein prescribed, the Trustee shall authenticate and
shall deliver any such Debentures which previously shall have
been signed and delivered by the officers of the Company to the
Trustee for authentication, and any of such Debentures which such
successor corporation thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All the Debentures so
issued shall in all respects have the same legal rank and benefit
under this Indenture as the Debentures theretofore or thereafter
issued in accordance with the terms of this Indenture as though
all of said Debentures had been issued at the date of the
execution hereof.
ARTICLE 9.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
DIRECTORS AND OFFICERS
9.01 INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
EXEMPT FROM INDIVIDUAL LIABILITY. No recourse under or upon any
obligation, covenant or agreement of this Indenture, or of any
Debenture issued hereunder, or because of the creation of any
indebtedness represented thereby, or for any claim based thereon
or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer or director, past, present or
future of the Company or of any successor corporation, either
directly or through the Company, whether by virtue of any
constitution or statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued
hereunder are solely corporate obligations, and that no personal
liability whatever shall attach to, or is or shall be incurred
by, the incorporators, stockholders, officers or directors, as
such, of the Company or of any successor corporation, or any of
them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants
or agreements contained in this Indenture or in any of the
Debentures issued hereunder or implied therefrom; and that any
and all such personal liability of every name and nature, whether
at common law or in equity or by constitution or statute, of, and
any and all rights and claims against, every such incorporator,
stockholder, officer or director, because of the creation of the
indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture
or in any of the Debentures issued hereunder or implied
therefrom, are hereby expressly waived and released as a
condition of, and as a consideration for, the execution hereof
and the issuance and acceptance of such Debentures.
ARTICLE 10.
SATISFACTION OF THE INDENTURE
10.01 SATISFACTION AND DISCHARGE OF INDENTURE AND PAYMENT
OF MONEYS HELD BY TRUSTEE. If (a) when all of the Debentures
shall have become due and payable, the Company shall have paid or
caused to be paid the whole amount of the principal and interest
due upon all the Debentures, or shall have deposited or cause to
be deposited with the Trustee as trust funds, for the payment of
any and all of the Debentures then outstanding, the entire amount
then due thereon for principal and interest, or shall deliver to
the Trustee for cancellation all Debentures issued hereunder and
not theretofore canceled; or (b) prior to all the Debentures
having become due and payable, the Company shall deposit or cause
to be deposited with the Trustee as trust funds an amount
sufficient to pay the whole amount of the principal of and
interest on all Debentures at the time issued and outstanding and
shall furnish proof satisfactory to the Trustee that notice of
redemption of all outstanding Debentures has been given as herein
provided, or make arrangements satisfactory to the Trustee that
such notice will be so given for the redemption of the Debentures
on a date not more than six (6) months (or, if any Senior Debt
shall then be outstanding, not more than forty (40) days), after
the deposit of such funds; and if in either of such events the
Company also shall pay or shall cause to be paid all other sums
payable hereunder by the Company, then this Indenture shall cease
to be of further effect, and the Trustee, on demand of the
Company and at its cost and expense, and upon receipt by the
Trustee of the Officers' Certificate and Opinion of Counsel
referred to in Section 10.02, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture, the
Company, however, hereby agreeing to reimburse the Trustee for
any costs or expenses thereafter reasonably and properly incurred
by the Trustee in connection with this Indenture or the
Debentures issued hereunder.
Any moneys deposited with the Trustee for the payment of the
principal of and interest on any Debentures and not applied but
remaining unclaimed by the holders of any series or any maturity
of any series and not applied to such payment within six (6)
years after the maturity date, or, in the event said Debentures
are called for redemption, after the redemption date of such
Debentures, shall be repaid to the Company on demand, and
thereupon the Trustee shall be released from all further
liability with respect to such moneys, and the holder of any such
Debentures entitled to receive such payment shall thereafter look
only to the Company for the payment thereof; provided, however,
that the Trustee, before being required to make any such
repayment, may at the expense of the Company cause to be
published once a week for two (2) successive calendar weeks (on
any day in each week), in a newspaper of general circulation in
Middleton, Wisconsin, a notice that such moneys have not been so
applied and that after a date named therein said moneys will be
returned to the Company.
No deposit made pursuant to this Section 10.01 shall be
deemed to have been made as a trust fund, unless and until the
funds so deposited may, under the provisions of Section 3.02, be
applied by the Trustee to the payment of the obligations with
respect to which such deposit was made.
10.02 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
As evidence of compliance with the conditions precedent provided
for in this Indenture which relate to the satisfaction and
discharge of this Indenture, the Company will furnish to the
Trustee an Officers' Certificate and an Opinion of Counsel with
respect thereto.
ARTICLE 11.
AMENDMENT OF INDENTURE
11.01 DEBENTURES DEEMED NOT OUTSTANDING FOR PURPOSES OF
ARTICLE 11. Debentures which have become due, either at
maturity, call for redemption or otherwise, and for the payment
of which the entire amount due thereon for principal and interest
shall be held in trust by the Trustee, and Debentures owned or
held by or for the account of the Company or any person directly
or indirectly controlling or directly or indirectly controlled by
the Company shall not be deemed to be outstanding for any purpose
of this Article 11.
11.02 MANNER OF CALLING MEETINGS. The Trustee may at any
time call a meeting of the Debentureholders whose rights are
affected by the business to be submitted to the meeting, and it
shall call such a meeting whenever requested in writing by the
Company or by the holders of twenty-five percent (25%) in
aggregate principal amount of the Debentures then outstanding
whose rights are affected by the business to be submitted to the
meeting, which request shall set forth in reasonable detail the
purpose of the meeting, such meeting to be held on such date and
at such place in Middleton or Madison, Wisconsin, as the Trustee
shall determine. Notice of every meeting of Debentureholders,
setting forth the date and place of such meeting and the purpose
of such meeting in reasonable detail, shall be mailed to the
registered holders of the Debentures then outstanding whose
rights are affected by the business to be submitted to the
meeting, at their addresses as they shall appear on the registry
maintained by the Trustee pursuant to Section 7.10.
11.03 CALL OF MEETING BY COMPANY OR DEBENTUREHOLDERS. In
case the Trustee shall fail to mail to the Debentureholders the
notice of a meeting of Debentureholders within twenty (20) days
after receipt of a request to call such a meeting signed by the
Company or by the holders of twenty-five percent (25%) of the
aggregate principal amount of the Debentures then outstanding,
the rights of the holders of which are affected by the business
to be submitted to the meeting, the Company or the
Debentureholders making such request may determine the date and
place for such meeting and may mail notice thereof as herein
required and may hold such meeting.
11.04 WHO MAY VOTE AT MEETINGS. To be entitled to vote at
any meeting of Debentureholders, a person shall (a) be the
registered holder of Debentures, or (b) be a person appointed by
an instrument in writing (the form of which must be satisfactory
to the Company and the Trustee) as proxy by the registered holder
of Debentures.
11.05 PROVISIONS IN CASE LESS THAN ALL SERIES OF DEBENTURES
AFFECTED. In case more than one series of Debentures shall be
outstanding under this Indenture, and the business to be
submitted to such meeting shall affect the rights of the holders
of one or more series and shall not affect the rights of the
holders of the Debentures of the other series, then only holders
of Debentures of the series whose rights are to be affected shall
have the right to notice of or to attend or vote at any such
meeting or to be counted for the purpose of a quorum. The
determination of the Trustee as to whether the rights of the
holders of a given series of Debentures are to be affected shall
be conclusive. The only persons who shall be entitled to be
present or to speak at any meeting of Debentureholders shall be
the persons entitled to vote at such meeting and any
representative of the Trustee and its counsel and any
representative of the Company and its counsel.
11.06 WHAT CONSTITUTES QUOROM AT MEETINGS. The quorum at
any such meeting shall be persons holding or representing by
proxy no less than sixty percent (60%) of the aggregate principal
amount of all Debentures then outstanding, the rights of the
holders of which are affected by the business to be submitted to
the meeting, without regard to series; but less than a quorum may
adjourn the meeting from time to time and the meeting may be held
as adjourned without further notice, whether such adjournment
shall have been had by a quorum or by less than a quorum. The
Trustee shall appoint a temporary chairman of the meeting, and
the meeting shall be organized by the election of a permanent
chairman and a secretary. At any meeting, each Debentureholder or
proxy shall be entitled to one (1) vote for every $500 aggregate
principal amount of Debentures held or represented by him. The
chairman of the meeting shall have no right to vote other than by
virtue of Debentures held by him or by instruments in writing as
aforesaid duly designating him as the person to vote on behalf of
other Debentureholders.
11.07 POWERS OF DEBENTUREHOLDERS' MEETINGS. A meeting of
the Debentureholders shall have the power by resolution
affirmatively voted by the holders (in person or by proxy) of the
specified percentage in aggregate principal amount of the
Debentures entitled to vote at such meeting then outstanding, as
hereinafter set forth, to
(a) Sanction on behalf of the Debentureholders any change
of any provision in this Indenture and any modification or
alteration of the rights of the Debentureholders against the
Company or against its property, whether such rights shall arise
under the provisions of this Indenture or otherwise; provided,
however, that no such change which, in the opinion of the
Trustee, affects its own rights, duties or immunities under this
Indenture may be made without the consent of the Trustee, and
provided further that the provisions of this Article 11 are
subject to the conditions that no amendment, alteration,
modification or supplement affecting the holders of Debentures of
one or more series, but less than all series, shall be made
unless the same is authorized by the holders of not less than
sixty percent (60%) in aggregate principal amount of the
outstanding debentures of each series so affected;
(b) Sanction on behalf of the Debentureholders any plan for
reorganization, readjustment or liquidation of the Company;
(c) Request the Trustee to exercise or refrain from
exercising any of the powers conferred upon it by this Indenture,
and direct the manner of the exercise of any such power or waive
any default on the part of the Company, other than the
non-payment of any principal at the expressed maturity or
interest when due, upon such terms as may be decided upon;
provided, however, that anything in this Article 11 to the
contrary notwithstanding, no such resolution shall (i) extend the
time of payment of the principal of or the interest on any
Debenture or reduce the principal amount thereof or the rate of
interest thereon, or (ii) modify or alter in any way the terms of
or effect of the subordination provisions herein contained, or
(iii) change or affect the rights, privileges or interest of the
holders of Debentures of any one series so as to give the holders
of debentures of any one or more series any preferences over the
holders of debentures of any other series, or (iv) change the
percentage of Debentureholders required to consent to any such
amendment, alteration, modification or supplement without the
consent of the holders of all outstanding Debentures, or (v)
modify or alter in any way the terms of Section 2.03 of this
Indenture; and provided further that no change of any of the
provisions of this Indenture sanctioned by the Debentureholders
as provided in Paragraph (a) of this Section 11.07, shall be
effective until consented to by the Company and until a
Supplemental Indenture embodying such changes shall have been
entered into pursuant to Article 7. The percentage in aggregate
principal amount of debentures required to take action at any
meeting of the Debentureholders held pursuant to this Section
11.07 shall be sixty percent (60%) of the Debentures entitled to
vote at such meeting, except where the consent of the holders of
all of the Debentures of all series or of any one or more series
then outstanding is required as hereinabove provided, and except
that, in cases where the action is such as the Debentureholders
may take pursuant to any of the provisions of Article 6 hereof,
such action may be taken by the percentage of outstanding
Debentures set forth in said Article 6.
11.08 RESOLUTIONS PASSED AT MEETING BINDING UPON ALL
DEBENTUREHOLDERS. Any such resolution so passed at a meeting of
the Debentureholders duly convened and held shall be binding upon
all Debentureholders, whether present or not at such meeting, and
each of the Debentureholders and the Trustee shall be bound to
give effect thereto accordingly, and the passing of any such
resolution shall be conclusive evidence that the circumstances
justify the passing thereof, the intention being that it shall
rest with the meeting to determine without appeal whether or not
the circumstances justify the passing of such resolution.
11.09 MINUTES OF MEETINGS TO BE MADE AND RECORDED. Minutes
of all resolutions and proceedings at every such meeting shall be
made and duly recorded in the books to be from time to time
provided for that purpose, and any such minutes, if signed by the
chairman and secretary of the meeting at which such resolutions
were passed or proceedings had, shall be conclusive evidence of
the matters therein contained, and, until the contrary is proved,
every such meeting, with respect to the proceedings of which
minutes have been made, shall be deemed to have been duly held
and convened, and all resolutions passed and proceedings had
thereat, to have been duly passed and had. The Company shall pay
any and all expenses in connection with the mailing notices and
holding any meeting of Debentureholders and of keeping minutes
thereof and making reports of any action taken at such meeting.
11.10 WRITTEN AUTHORIZATION OR CONSENT OF DEBENTUREHOLDERS
IN LIEU OF MEETING. The written authorization or consent of the
requisite percentage of Debentureholders herein provided,
entitled to vote at any such meeting, filed with the Trustee,
shall be effective, in lieu of a meeting of Debentureholders,
with respect to any matter provided for in this Article 11.
ARTICLE 12.
SUPPLEMENTAL INDENTURES
12.01 PURPOSES FOR WHICH SUPPLEMENTAL INDENTURES MAY BE
ENTERED INTO. The Company, when authorized by resolution of its
Board of Directors, and the Trustee, from time to time and at any
time, subject to the conditions and restrictions in this
Indenture contained, but without requiring the consent of the
holders of any of the Debentures except when acting pursuant to
Paragraph (b) of this Section 12.01, may enter into an Indenture
or Indentures, supplemental hereto and which shall thereafter
form a part hereof (a "Supplemental Indenture"), for any one or
more or all of the following purposes:
(a) To add to the covenants and agreements of the Company
contained in this Indenture other covenants and agreements
thereafter to be observed and/or to surrender any right or power
herein reserved to or conferred upon the Company or to or upon
any successor corporation;
(b) To embody any modification or alteration of this
Indenture or of any Indenture supplemental hereto, or of any
Debentures issued hereunder, made pursuant to the provisions of
Article 11 hereof;
(c) To evidence the succession of another corporation to
the Company, or successive successions, and the assumption by a
successor corporation of the covenants and obligations of the
Company contained in the Debentures hereby secured and in this
Indenture and in any and every Supplemental Indenture;
(d) To clarify any ambiguity or to clarify, correct or
supplement any defect or inconsistent provision contained in this
Indenture or any Supplemental Indenture;
(e) To provide for the issuance of additional Debentures
hereunder; and
(f) To comply with the mandatory provisions of the Trust
Indenture Act of 1939, as amended, and for that purpose to
modify, amend and/or supplement this Indenture.
12.02 TRUSTEE AUTHORIZED TO EXECUTE SUPPLEMENTAL INDENTURE.
The Trustee is hereby authorized to join with the Company in the
execution of any such Supplemental Indenture and to make the
further agreements and stipulations which may be therein
contained.
12.03 OPINION OF COUNSEL. The Trustee, subject to the
provisions of Section 7.03, may receive an Opinion of Counsel as
conclusive evidence that any Supplemental Indenture executed
pursuant to the provisions of this Article 12 complies with the
requirements of this Article 12.
ARTICLE 13.
DEFINITIONS AND MISCELLANEOUS PROVISIONS
13.01 DEFINITIONS OF TERMS USED IN THE INDENTURE. The
terms defined in this Section 13.01 (except as otherwise
expressly provided in this Indenture or unless the context
otherwise requires), for all purposes of this Indenture and any
Supplemental Indenture and the Debentures to be issued hereunder,
shall have the respective meanings specified in this Section
13.01. All terms used in this Indenture shall signify the plural
as well as the singular number where appropriate, and all
definitions of singular terms shall be applicable to the plural
of such terms.
"Board of Directors" means the Board of Directors of the
Company.
"Debenture" means any Debenture authenticated and delivered
under this Indenture.
"Series 1995 Debenture" means any Debenture which is one of
the Series 1995 Registered Subordinated Debentures of the Company
issued under this Indenture.
"Outstanding" means, when used with reference to Debentures,
as of any particular time, all Debentures issued by the Company,
and authenticated and delivered by the Trustee under this
Indenture, except:
(a) Debentures theretofore canceled by the Trustee or
delivered to the Trustee canceled or for cancellation;
(b) Debentures for the payment or redemption of which
moneys in the necessary amount shall have been deposited with the
Trustee so as to constitute trust funds which may, under the
provisions of Section 3.02, be applied to the payment of such
Debentures, provided that if such Debentures are to be redeemed
prior to the maturity thereof, provision satisfactory to the
Trustee shall have been made for giving notice thereof; and
(c) Debentures in lieu of or in substitution for which
other Debentures shall have been issued, authenticated and
delivered pursuant to the terms of Section 1.10 of this Indenture
(including any Supplemental Indentures).
"Debentureholder" or "holder of Debentures" or other
similar terms, mean any person who shall at the time be the
registered holder of any Debentures.
"Debt" means all indebtedness of the Company, whether
secured or unsecured, heretofore or hereafter incurred,
representing money borrowed (and specifically excluding, by way
of illustration, indebtedness or amounts owed for goods or
materials purchased in the ordinary course of business, for
compensation to employees, or for services).
"Capital Debt" means all Debt of the Company which is
subordinated and junior in right with respect to the general
assets of the Company to Senior Debt of the Company, and Capital
Debt shall include, without limitation, Debentures issued
hereunder.
"Officers' Certificate" means a certificate signed by the
President or any Vice President and by the Secretary or any
Assistant Secretary, or the Treasurer or any Assistant Treasurer
of the Company. Each such Certificate shall include the
statements provided for in Section 13.08, as and to the extent
required by the provisions thereof.
"Opinion of Counsel" means a written opinion of counsel who
may be (unless otherwise expressly provided in this Indenture)
counsel for the Company and who shall be acceptable to the
Trustee. Any Opinion of Counsel may be based, insofar as it
relates to factual matters with respect to which information is
in the possession of the Company, upon an Officers' Certificate
unless such counsel knows that such Officers' Certificate is
erroneous, or, in the exercise of reasonable care, should have
known that the same was erroneous.
"Senior Debt" means Debt of the Company outstanding at any
time except Debt that by its terms is not senior in right of
payment to the Debentures.
13.02 NO PERSON SHALL HAVE RIGHTS UNDER INDENTURE EXCEPT
DEBENTUREHOLDERS AND HOLDERS OF SENIOR DEBT. Nothing in this
Indenture or in the Debentures, express or implied, shall give or
be construed to give to any person, firm or corporation, other
than the parties hereto, the holders of the Debentures and the
holders of Senior Debt, any legal or equitable right, remedy or
claim under or in respect of this Indenture, or under any
covenant, condition or provision herein contained, and all of its
covenants, conditions and provisions shall be for the sole
benefit of the parties hereto and of the holders of the
Debentures and the holders of Senior Debt.
13.03 INTERPRETATION AND APPLICATION OF INDENTURE. In case
any of the remedies herein given or attempted to be given to the
Trustee or the holders of Debentures shall at any time be held
invalid, or any provisions of this Indenture shall be held
illegal or invalid for any reason, such illegality or invalidity
shall not affect the remaining parts of this Indenture or the
other remedies given hereby. If any provision of this Indenture
limits, qualifies or conflicts with any other provision of this
Indenture required under applicable law, including the Trust
Indenture Act of 1939, as amended, such required provision shall
control.
13.04 INDENTURE BINDING ON SUCCESSORS AND ASSIGNS. All of
the covenants, stipulations and agreements herein contained shall
be binding upon the parties hereto respectively and their
successors and assigns.
13.05 DESCRIPTIVE HEADINGS. The descriptive headings of
the various articles, sections and paragraphs of this Indenture
were formulated, used and inserted in this Indenture for
convenience only and shall not be deemed to affect the meaning or
construction of any of the provisions hereof.
13.06 COUNTERPARTS. This Indenture may be simultaneously
executed in any number of counterparts, and all said
counterparts, executed and delivered each as an original, shall
constitute but one and the same instrument.
13.07 NOTICES TO DEBENTUREHOLDERS. Whenever notice to
Debentureholders is required by any provision of this Indenture,
it shall be given in the manner provided in Section 6.02 hereof.
13.08 OFFICERS' CERTIFICATE AND OPINION OF COUNSEL TO BE
FURNISHED BY COMPANY TO TRUSTEE UPON ANY APPLICATION OR DEMAND.
Upon any application or demand by the Company to the Trustee to
take any action under the provisions of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent 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 have been complied with,
except that, in the case of any such application or demand as to
which the furnishing of such documents is specifically required
by any provision of this Indenture relating to such particular
application or demand, no additional certificate or opinion need
be furnished. Each Officers' Certificate or Opinion of Counsel
provided for in this Indenture and delivered to the Trustee with
respect to compliance with a condition or covenant provided for
in this Indenture shall include (a) a statement that the person
making such Officers' Certificate or Opinion of Counsel has read
such covenant or condition; (b) a brief statement as to the
nature and scope of the examination or investigation conducted by
such person; (c) a statement that 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 or not,
in the opinion of such person, such condition or covenant has
been complied with.
13.09 PLACE AND MANNER OF GIVING NOTICE TO THE COMPANY.
Any notice or demand authorized by this Indenture to be served on
or given to the Company shall be sufficiently served or given for
all purposes, if it shall be sent by registered or certified mail
to the Company addressed to it at 1912 Parmenter Street,
Middleton, Wisconsin 53562, or at such other address as may have
been furnished in writing to the Trustee by the Company.
IN WITNESS WHEREOF, Mid-Plains Telephone, Inc. and M&I First
National Bank have executed this Indenture as of the day and year
first above written.
MID-PLAINS TELEPHONE, INC.
Attest:
By:/s/Fredrick E. Urben By:/s/Dean W. Voeks
Fredrick E. Urben Dean W. Voeks
Secretary President
[CORPORATE SEAL]
M&I FIRST NATIONAL BANK
Attest:
By:/s/M.F. Hron By:/s/R.T. Stephenson
M.F. Hron R.T. Stephenson
Vice President Executive Vice President
[CORPORATE SEAL]
<PAGE>
No. $
--------------------- --------------------
MID-PLAINS TELEPHONE, INC.
SERIES 1995 REGISTERED SUBORDINATED DEBENTURE
(Subordinated to Senior Debt)
Dated: July 1, 1995
Five (5) years after the date hereof, MID-PLAINS TELEPHONE,
INC., a Wisconsin corporation (hereinafter referred to as the
"Company"), for value received, hereby promises to pay to the
registered holder hereof (unless this Debenture be sooner redeemed
as hereinafter provided), at the office of the M&I FIRST NATIONAL
BANK, West Bend, Wisconsin, the Trustee under the Indenture
hereinafter described, upon the presentation and surrender of this
Debenture, the sum of
Dollars
($ ), in lawful money of the United States of
America, and to pay interest thereon in like coin or currency from
the date hereof until the payment of said principal sum, at the
rate of % per annum, payable quarterly on the first day of
October, January, April and July in each year at the office of the
Trustee, with the first such payment due October 1, 1995.
This Debenture is one of the initially authorized issue of
Debentures of the Company in the principal amount of $5,000,000
designated as Series 1995 Registered Subordinated Debentures
(hereinafter sometimes called "Series 1995 Debentures"), all of
like tenor (except as to number and denomination), issued under and
in accordance with, and all equally and ratably entitled to the
benefits of, an Indenture (hereinafter the "Indenture"), dated as
of April 27, 1995, and executed by and between the Company and M&I
FIRST NATIONAL BANK, West Bend, Wisconsin (herein the "Trustee"),
under which additional Debentures ranking pari passu herewith may
be issued, to which Indenture reference is hereby made for a
statement of the rights and obligations of the Company and of the
Trustee and of the rights of the holders of the Debentures.
The payment of the principal of and interest on this Debenture
is expressly subordinated, as provided in the Indenture, to the
payment of all Senior Debt (as defined in the Indenture), and by
acceptance of this Debenture the holder hereof agrees, expressly
for the benefit of present and future holders of Senior Debt, to be
bound by the provisions of the Indenture.
The Series 1995 Debentures are subject to redemption as a
whole at any time or in part from time to time, at the option of
the Company, upon notice and in the manner and with the effect
provided in the Indenture, and upon payment of the principal amount
thereof and accrued interest thereon to the date fixed for
redemption. In case less than all of the Series 1995 Debentures at
the time outstanding are to be redeemed, the Series 1995 Debentures
to be redeemed shall be selected by the Trustee by lot or redeemed
on a pro rata basis.
In case an event of default (as defined in the Indenture)
shall occur and be continuing, the principal of all the Debentures
then outstanding under the Indenture may be declared due and
payable, or may become due and payable in the manner and with the
effect provided in the Indenture.
This Debenture shall be registered as to principal in the
owner's name at the office of the Trustee, and is transferable only
at said office by the registered owner or by his duly authorized
attorney.
THIS DEBENTURE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AND MAY NOT BE RESOLD TO ANY PERSON NOT A RESIDENT OF
THE STATE OF WISCONSIN DURING THE PERIOD FROM MAY 1, 1995 THROUGH
MARCH 31, 1996. NO TRANSFER OF THIS DEBENTURE SHALL BE REGISTERED
UNLESS THE COMPANY IS SATISFIED THAT SUCH TRANSFER WILL NOT RESULT
IN VIOLATION OF THE SECURITIES ACT OF 1993 OR THE SECURITIES LAWS
OF ANY STATE.
To the extent permitted by and as provided in the Indenture,
modifications or alterations of the Indenture, or of any supplement
to the Indenture (a "Supplemental Indenture"), and of the rights
and obligations of the Company and of the registered owners of
Debentures, may be made at the request of or with the consent of
the Company, and upon the written consent or affirmative vote of
the holders of 60% in aggregate principal amount of the Debentures
then outstanding, given as provided in the Indenture, and, in case
one or more but less than all of the series of Debentures then
outstanding under the Indenture are thereby affected, upon the
written consent or affirmative vote of the holders of 60% in
principal amount of the Debentures of all series then outstanding
that are affected by such modification or alteration, given as
aforesaid; provided that no such modification or alteration that,
in the opinion of the Trustee, affects its own rights, duties or
immunities under the Indenture may be made without the consent of
the Trustee, and provided that no such modification or alteration
shall (a) extend the time of payment of the principal amount
thereof or the rate of interest thereon, or (b) modify or alter the
terms or effect of the subordination provisions contained in said
Indenture, or (c) change or affect the rights, privileges, or
interests of the holders of Debentures of any one series so as to
give the holders of Debentures of any one or more series any
preference over the holders of Debentures of any other series, or
(d) change the percentage of Debenture holders required to consent
to any such amendment, alteration, modification, or supplement
without the consent of the holders of all of the outstanding
Debentures.
Notwithstanding the foregoing, the Company may at any time,
without the consent of the holders of any of the Debentures, enter
into a Supplemental Indenture or Supplemental Indentures with the
Trustee for any of the following purposes: to add to the covenants
or agreements, or surrender any right or power of the Company under
the Indenture; to evidence the succession of another corporation to
the Company; to clarify any ambiguity, defect or inconsistent
provision contained in the Indenture; to provide for the issuance
of additional Debentures under the Indenture; and to comply with
the mandatory provisions of the Trust Indenture Act of 1939, as
amended.
No recourse shall be had for the payment of the principal of,
or the interest on, this Debenture, or for any claim based hereon,
or otherwise in respect hereof, or based on or in respect of the
Indenture, against any incorporator, stockholder, officer or
director, past, present or future, of the Company or of any
successor corporation, whether by virtue of any constitution,
statute or rule of law or by the enforcement of any assessment or
penalty or otherwise, all of such liability being by the acceptance
hereof and as part of the consideration for the issue hereof
expressly released, as provided in the Indenture.
This Debenture shall not become valid or obligatory for any
purpose until this Debenture shall have been authenticated by the
Trustee under the Indenture.
IN WITNESS WHEREOF, MID-PLAINS TELEPHONE, INC. has caused this
Debenture to be signed in its corporate name by its President or a
Vice President, manually or in facsimile, and its corporate seal or
a facsimile thereof to be imprinted hereon and attested by the
manual or facsimile signature of its Secretary or an Assistant
Secretary.
MID-PLAINS TELEPHONE, INC.
Attest:
By: /s/Fredrick E. Urben By:/s/Dean W. Voeks
Fredrick E. Urben, Secretary Dean W. Voeks,President
[CORPORATE SEAL]
<PAGE>
CERTIFICATE OF AUTHENTICATION
This Debenture is one of the Debentures of the series
designated herein, described in the above referred-to Indenture.
M&I FIRST NATIONAL BANK, Trustee
By:
-----------------------------
Authorized Officer
CERTIFICATE OF REGISTRATION
Date Registered Holder Registrar
of M&I First
Registration Name Address National Bank
By:
By:
By:
By:
