<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) March 25, 1999
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WISCONSIN ENERGY CORPORATION
(Exact name of registrant as specified in its charter)
1-9057
(Commission file number)
Wisconsin 39-1391525
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
231 West Michigan Street, P.O. Box 2049, Milwaukee, Wisconsin 53201
(address of principal executive offices) (Zip Code)
(414) 221-2345
(Registrant's telephone number, including area code)
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NOT APPLICABLE
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(Former name or former address, if changed since last report)
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FORM 8-K
WISCONSIN ENERGY CORPORATION
----------------------------
The purpose of this report is to file certain exhibits in connection with Trust
Preferred Securities issued on March 25, 1999 pursuant to Registration Statement
No. 333-73137.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits. The following exhibits are filed herewith:
4.46 Indenture for Debt Securities of Wisconsin Energy Corporation
(the "WEC Indenture"), dated as of March 15, 1999.
4.47 Securities Resolution No. 1 of Wisconsin Energy Corporation
under the WEC Indenture, dated as of March 16, 1999.
4.48 Amended and Restated Trust Agreement among Wisconsin Energy
Corporation, as Depositor, The First National Bank of
Chicago, as Property Trustee, First Chicago Delaware Inc, as
Trustee, and the Administrative Trustees for WEC Capital
Trust I, dated as of March 25, 1999.
4.49 Guarantee Agreement between Wisconsin Energy Corporation, as
Guarantor, and The First National Bank of Chicago, as
Trustee, dated as of March 25, 1999.
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FORM 8-K
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 thereunto duly authorized.
WISCONSIN ENERGY CORPORATION
------------------------------------
(Registrant)
/s/Calvin H. Baker
------------------------------------
Calvin H. Baker, Treasurer and Chief
Financial Officer
Date: April 8, 1999
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WISCONSIN ENERGY CORPORATION
----------------------------
EXHIBIT INDEX
Current Report on Form 8-K
Report Dated March 25, 1999
Exhibit
Number
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4.46 Indenture for Debt Securities of Wisconsin Energy Corporation
(the "WEC"), dated as of March 15, 1999.
4.47 Securities Resolution No. 1 of Wisconsin Energy Corporation under
the WEC Indenture, dated as of March 16, 1999.
4.48 Amended and Restated Trust Agreement among Wisconsin Energy
Corporation, as Depositor, The First National Bank of Chicago, as
Property Trustee, First Chicago Delaware Inc, as Trustee, and the
Administrative Trustees for WEC Capital Trust I, dated as of March
25, 1999.
4.49 Guarantee Agreement between Wisconsin Energy Corporation, as
Guarantor, and The First National Bank of Chicago, as Trustee, dated
as of March 25, 1999.
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EXHIBIT 4.46
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WISCONSIN ENERGY CORPORATION
DEBT SECURITIES
_____________________________
INDENTURE
DATED AS OF MARCH 15, 1999
______________________________
THE FIRST NATIONAL BANK OF CHICAGO, AS TRUSTEE
================================================================================
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<TABLE>
<CAPTION>
PARTIAL CROSS-REFERENCE TABLE
INDENTURE SECTION TIA SECTION
<S> <C>
2.05.......................................... 317(b)
2.06.......................................... 312(a), 313(c)
2.11.......................................... 316(a) (last sentence)
4.04.......................................... 314(a)(4)
4.05.......................................... 314(a)(1)
6.03.......................................... 317(a)(1)
6.04.......................................... 316(a)(1)(B)
6.05.......................................... 316(a)(1)(A)
6.07.......................................... 317(a)(1)
7.01.......................................... 315(a), 315(d)
7.04.......................................... 315(b)
7.05.......................................... 313(a), 313(d)
7.07.......................................... 310(a), 310(b)
7.09.......................................... 310(a)(2)
8.02.......................................... 310(a), 310(b)
10.04......................................... 316(c)
11.01......................................... 318(a)
11.02......................................... 313(c)
11.03......................................... 314(c)(1), 314(c)(2)
11.04......................................... 314(e)
</TABLE>
<PAGE>
TABLE OF CONTENTS
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ARTICLE 1 -- DEFINITIONS
SECTION 1.01. Definitions............................................ 1
SECTION 1.02. Other Definitions...................................... 4
SECTION 1.03. Rules of Construction.................................. 4
ARTICLE 2 -- THE SECURITIES
SECTION 2.01. Issuable in Series..................................... 5
SECTION 2.02. Execution and Authentication........................... 5
SECTION 2.03. Registrar and Transfer, Paying and Conversion Agents
and Other Agents.................................... 8
SECTION 2.04. Bearer Securities...................................... 8
SECTION 2.05. Paying Agent to Hold Money in Trust.................... 9
SECTION 2.06. Securityholder Lists................................... 10
SECTION 2.07. Transfer and Exchange.................................. 10
SECTION 2.08. Replacement Securities................................. 11
SECTION 2.09. Outstanding Securities................................. 11
SECTION 2.10. Discounted Debt Securities............................. 12
SECTION 2.11. Treasury Securities.................................... 12
SECTION 2.12. Global Securities...................................... 12
SECTION 2.13. Temporary Securities................................... 12
SECTION 2.14. Cancellation........................................... 13
SECTION 2.15. Defaulted Interest..................................... 13
ARTICLE 3 -- REDEMPTION
SECTION 3.01. Notices to Trustee..................................... 13
SECTION 3.02. Selection of Securities to Be Redeemed................. 14
SECTION 3.03. Notice of Redemption................................... 14
SECTION 3.04. Effect of Notice of Redemption......................... 15
SECTION 3.05. Payment of Redemption Price............................ 15
SECTION 3.06. Securities Redeemed in Part............................ 16
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ARTICLE 4 -- COVENANTS
SECTION 4.01. Payment of Securities.................................. 16
SECTION 4.02. Overdue Interest....................................... 16
SECTION 4.03. No Lien Created, etc................................... 16
SECTION 4.04. Compliance Certificate................................. 17
SECTION 4.05. SEC Reports............................................ 17
SECTION 4.06. Costs and Expenses of WEC Trusts....................... 17
ARTICLE 5 -- SUCCESSORS
SECTION 5.01. When Company May Merge, etc............................ 18
ARTICLE 6 -- DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default...................................... 19
SECTION 6.02. Acceleration........................................... 20
SECTION 6.03. Other Remedies......................................... 21
SECTION 6.04. Waiver of Past Defaults................................ 21
SECTION 6.05. Control by Majority.................................... 21
SECTION 6.06. Limitation on Suits.................................... 22
SECTION 6.07. Collection Suit by Trustee............................. 22
SECTION 6.08. Priorities............................................. 22
ARTICLE 7 -- TRUSTEE
SECTION 7.01. Rights of Trustee...................................... 23
SECTION 7.02. Individual Rights of Trustee........................... 24
SECTION 7.03. Trustee's Disclaimer................................... 24
SECTION 7.04. Notice of Defaults..................................... 24
SECTION 7.05. Reports by Trustee to Holders.......................... 25
SECTION 7.06. Compensation and Indemnity............................. 25
SECTION 7.07. Replacement of Trustee................................. 26
SECTION 7.08. Successor Trustee by Merger, etc....................... 27
SECTION 7.09. Trustee's Capital and Surplus.......................... 27
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ARTICLE 8 -- DISCHARGE OF INDENTURE
SECTION 8.01. Defeasance............................................. 27
SECTION 8.02. Conditions to Defeasance............................... 28
SECTION 8.03. Application of Trust Money............................. 29
SECTION 8.04. Repayment to Company................................... 29
ARTICLE 9 -- CONVERSION
SECTION 9.01. Conversion Privilege................................... 29
SECTION 9.02. Conversion Procedure................................... 30
SECTION 9.03. Taxes on Conversion.................................... 31
SECTION 9.04. Company Determination Final............................ 31
SECTION 9.05. Trustee's and Conversion Agent's Disclaimer............ 31
SECTION 9.06. Company to Provide Conversion Securities............... 31
SECTION 9.07. Cash Settlement Option................................. 32
SECTION 9.08. Adjustment in Conversion Rate for Change in
Capital Stock....................................... 33
SECTION 9.09. Adjustment in Conversion Rate for Common Stock
Issued Below Market Price........................... 34
SECTION 9.10. Adjustment for Other Distributions..................... 36
SECTION 9.11. Voluntary Adjustment................................... 37
SECTION 9.12. When Adjustment May Be Deferred........................ 37
SECTION 9.13. When No Adjustment Required............................ 37
SECTION 9.14. Notice of Adjustment................................... 38
SECTION 9.15. Notice of Certain Transactions......................... 38
SECTION 9.16. Reorganization of the Company.......................... 39
ARTICLE 10 -- AMENDMENTS
SECTION 10.01. Without Consent of Holders............................. 39
SECTION 10.02. With Consent of Holders................................ 39
SECTION 10.03. Compliance with Trust Indenture Act.................... 41
SECTION 10.04. Effect of Consents..................................... 41
SECTION 10.05. Notation on or Exchange of Securities.................. 41
SECTION 10.06. Trustee Protected...................................... 41
ARTICLE 11 -- MISCELLANEOUS
SECTION 11.01. Trust Indenture Act................................... 42
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SECTION 11.02. Notices............................................... 42
SECTION 11.03. Certificate and Opinion as to Conditions Precedent.... 43
SECTION 11.04. Statements in Certificate or Opinion.................. 43
SECTION 11.05. Rules by Company and Agents........................... 44
SECTION 11.06. Legal Holidays........................................ 44
SECTION 11.07. No Recourse Against Others............................ 44
SECTION 11.08. Duplicate Originals................................... 44
SECTION 11.09. Governing Law......................................... 45
SIGNATURES............................................................ S-1
EXHIBIT A: A Form of Registered Security............................. A-1
EXHIBIT B: A Form of Bearer Security................................. B-1
Notes to Exhibits A and B
EXHIBIT C: Assignment Form........................................... C-1
EXHIBIT D: Conversion Notice......................................... D-1
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<PAGE>
INDENTURE dated as of March 15, 1999 between WISCONSIN ENERGY
CORPORATION, a Wisconsin corporation (hereinafter called the "COMPANY"), and THE
FIRST NATIONAL BANK OF CHICAGO (the "TRUSTEE").
Each party agrees as follows for the benefit of the Holders (as
defined below) of the Company's debt securities issued under this Indenture:
ARTICLE 1 -- DEFINITIONS
SECTION 1.01. Definitions.
"AFFILIATE" means any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company.
"AGENT" means any Registrar, Transfer Agent, Paying Agent, Conversion
Agent or other Agent appointed by the Company.
"AUTHORIZED NEWSPAPER" means a newspaper that is:
(1) printed in the English language or in an official language of the
country of publication;
(2) customarily published on each business day in the place of
publication; and
(3) of general circulation in the relevant place or in the financial
community of such place.
Whenever successive publications in an Authorized Newspaper are
required, they may be made on the same or different business days and in the
same or different Authorized Newspapers.
"BEARER SECURITY" means a Security payable to bearer.
"BOARD" means the Board of Directors of the Company or any authorized
committee of the Board.
"CAPITAL STOCK" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of any person and all
warrants or options to acquire such capital stock.
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"COMMON STOCK" means the Common Stock, par value $.01 per share, of
the Company.
"COMPANY" means the party named as such above until a successor
replaces it and thereafter means the successor.
"CONVERSION RATE" means such number or amount of shares of Common
Stock or other equity or debt securities for which $1,000 aggregate principal
amount of Securities of any series is convertible, initially as stated in the
Securities Resolution authorizing the series and as adjusted pursuant to the
terms of this Indenture and the Securities Resolution.
"COUPON" means an interest coupon for a Bearer Security.
"DEFAULT" means any event which is, or after notice or passage of time
would be, an Event of Default (as defined below).
"DISCOUNTED DEBT SECURITY" means a Security where the amount of
principal due upon acceleration is less than the stated principal amount.
"HOLDER" or "SECURITYHOLDER" means the person in whose name a
Registered Security is registered and the bearer of a Bearer Security or coupon.
"INDENTURE" means this Indenture and any Securities Resolution as
amended from time to time.
"LIEN" means any mortgage, pledge, security interest or other lien.
"OFFICER" means the Chairman, any Vice-Chairman, the President, any
Executive or Senior Vice President, any Vice-President, the Treasurer or any
Assistant Treasurer, the Secretary or any Assistant Secretary of the Company.
"OFFICERS' CERTIFICATE" means a certificate signed by two Officers of
the Company, and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion from legal counsel who is
acceptable to the Trustee, and delivered to the Trustee. The counsel may be an
employee of or counsel to the Company or the Trustee.
"PRINCIPAL" of a debt security means the principal of the security
plus the premium, if and when applicable, on the security.
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"REGISTERED SECURITY" means a Security registered as to principal and
interest by the Registrar.
"SEC" means the Securities and Exchange Commission.
"SECURITIES" means the debt securities issued under this Indenture.
"SECURITIES RESOLUTION" means a resolution adopted by the Board or by
a committee of Officers or an Officer pursuant to Board delegation authorizing a
series or a supplemental indenture authorizing a series executed by an
authorized Officer.
"SERIES" means a series of Securities or the Securities of the series.
"SUBSIDIARY" means a corporation a majority of whose Voting Stock is
owned by the Company or a Subsidiary.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code ss. 77aaa-
77bbbb), as amended.
"TRADING DAY" means each day on which the securities exchange or
quotation system which is used to determine the Market Price is open for trading
or quotation.
"TRUSTEE" means the party named as such above until a successor
replaces it and thereafter means the successor.
"TRUST OFFICER" means any officer or assistant officer of the Trustee
assigned by the Trustee to administer its corporate trust matters.
"TRUST SECURITIES" means securities issued by a WEC Trust.
"UNITED STATES" means the United States of America, its territories
and possessions and other areas subject to its jurisdiction.
"VOTING STOCK" means capital stock having voting power under ordinary
circumstances to elect directors.
"WEC TRUST" means a statutory business trust created under Delaware
law pursuant to a trust agreement executed by the Company, as depositor of such
WEC Trust, and the trustees of such WEC Trust named therein and pursuant to a
certificate of trust filed with the Delaware Secretary of State, which WEC Trust
exists for the purposes of (i) issuing and selling its trust securities, (ii)
using the proceeds from the sale of such trust securities to ac-
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quire a series of Securities issued by the Company under this Indenture and
(iii) engaging in only those other activities necessary, convenient or
incidental thereto.
"YIELD TO MATURITY" means the yield to maturity on a Security at the
time of its issuance or at the most recent determination of interest on the
Security.
SECTION 1.02. Other Definitions.
TERM DEFINED IN SECTION
"ACTUAL KNOWLEDGE" 7.01
"BANKRUPTCY LAW" 6.01
"CONDITIONAL REDEMPTION" 3.04
"CONVERSION AGENT" 2.03
"CONVERSION DATE" 9.02
"CONVERSION NOTICE" 9.02
"CONVERSION RIGHT" 9.01
"CREDITOR" 4.06
"CUSTODIAN" 6.01
"EVENT OF DEFAULT" 6.01
"LEGAL HOLIDAY" 11.06
"MARKET PRICE" 9.07
"PAYING AGENT" 2.03
"PRICE PER SHARE" 9.09
"REGISTRAR" 2.03
"TRANSFER AGENT" 2.03
"TREASURY REGULATIONS" 2.04
"U.S. GOVERNMENT OBLIGATIONS" 8.02
SECTION 1.03. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles
in the United States;
(3) generally accepted accounting principles are those applicable
from time to time;
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(4) all terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC
rule under the TIA have the meanings assigned to them by such
definitions;
(5) "or" is not exclusive; and
(6) words in the singular include the plural, and in the plural
include the singular.
ARTICLE 2 -- THE SECURITIES
SECTION 2.01. Issuable in Series.
The aggregate principal amount of Securities that may be issued under
this Indenture is unlimited. The Securities may be issued from time to time in
one or more series. Each series shall be created by a Securities Resolution that
establishes the terms of the series, which may include the following:
(1) the title of the series;
(2) the aggregate principal amount of the series;
(3) the interest rate or rates, if any, or method of calculating the
interest rate or rates;
(4) the date from which interest will accrue;
(5) the record dates for interest payable on Registered Securities;
(6) the dates when principal and interest are payable;
(7) the manner of paying principal and interest;
(8) the places where principal and interest are payable;
(9) the Registrar, Transfer Agent and Paying Agent;
(10) the terms of any mandatory or optional redemption by the Company
including any sinking fund;
(11) the terms of any redemption at the option of Holders;
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(12) the denominations in which Securities are issuable;
(13) whether Securities will be issuable as Registered Securities,
Bearer Securities or uncertificated Securities;
(14) whether and upon what terms Registered Securities, Bearer
Securities and uncertificated Securities may be exchanged;
(15) whether any Securities will be represented by a Security in
global form;
(16) the terms of any global Security;
(17) the terms of any tax indemnity;
(18) the currencies (including any composite currency) in which
principal or interest may be paid;
(19) if payments of principal or interest may be made in a currency
other than that in which Securities are denominated, the manner
for determining such payments;
(20) if amounts of principal or interest may be determined by
reference to an index, formula or other method, the manner for
determining such amounts;
(21) provisions for electronic issuance of Securities or for
Securities in uncertificated form;
(22) the portion of principal payable upon acceleration of a
Discounted Debt Security;
(23) whether any Events of Default or covenants in addition to or in
lieu of those set forth in this Indenture apply;
(24) whether and upon what terms Securities may be defeased;
(25) the forms of the Securities or any coupon, which may be in the
form of Exhibit A or B;
(26) any terms that may be required by or advisable under U.S. or
other applicable laws or regulations;
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(27) whether and upon what terms the Securities will be convertible
into or exchangeable for Common Stock of the Company or other
equity or debt securities, which may include the terms provided
in Article 9;
(28) the ranking of the Securities, including the relative degree, if
any, to which the Securities of such series shall be
subordinated to one or more other series of Securities in right
of payment, whether outstanding or not;
(29) any provisions relating to extending or shortening the date on
which the principal and premium, if any, of the Securities of
such series is payable;
(30) any provisions relating to the deferral of payment of any
interest;
(31) if such Securities are to be issued to a WEC Trust, the forms of
the related trust agreement and guarantee agreement relating
thereto;
(32) the additions or changes, if any, to this Indenture with respect
to the Securities of such series as shall be necessary to permit
or facilitate the issuance of such Securities to a WEC Trust;
and
(33) any other terms not inconsistent with this Indenture.
All Securities of one series need not be issued at the same time and,
unless otherwise provided, a series may be reopened for issuances of additional
Securities of such series.
The creation and issuance of a series and the authentication and
delivery thereof are not subject to any conditions precedent.
SECTION 2.02. Execution and Authentication.
Two Officers shall sign the Securities by manual or facsimile
signature. The Company's seal shall be reproduced on the Securities. An Officer
shall sign any coupons by facsimile signature.
If an Officer whose signature is on a Security or its coupons no
longer holds that office at the time the Security is authenticated or delivered,
the Security and coupons shall nevertheless be valid.
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A Security and its coupons shall not be valid until the Security is
authenticated by the manual or facsimile signature of the Registrar. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security shall be dated the date of its original
issuance or as provided in the Securities Resolution.
Securities may have notations, legends or endorsements required by
law, stock exchange rule, agreement or usage.
In the event Securities are issued in electronic or other
uncertificated form, such Securities may be validly issued without the
signatures or seal contemplated by this Section 2.02.
SECTION 2.03. Registrar and Transfer, Paying and Conversion Agents and Other
Agents.
The Company shall maintain an office or agency where Securities may be
authenticated ("REGISTRAR"), where Securities may be presented for registration
of transfer or for exchange ("TRANSFER Agent"), where Securities may be
presented for payment ("PAYING AGENT") and where Securities may be presented for
conversion ("CONVERSION AGENT"). Whenever the Company must issue or deliver
Securities pursuant to this Indenture, the Registrar shall authenticate the
Securities at the Company's request. The Transfer Agent shall keep a register of
the Securities and of their transfer and exchange.
The Trustee shall be, and is hereby appointed as, Registrar. The
Company may appoint more than one Transfer Agent, Paying Agent or Conversion
Agent or other Agent for a series. The Company shall notify the Trustee of the
name and address of any Agent not a party to this Indenture. If the Company does
not appoint or maintain a Transfer Agent, Paying Agent or Conversion Agent for a
series, the Trustee shall act as such.
SECTION 2.04. Bearer Securities.
U.S. laws and Treasury Regulations restrict sales or exchanges of and
payments on Bearer Securities. Therefore, except as provided below:
(1) Bearer Securities will be offered, sold or delivered only outside
the United States and will be delivered in connection with their
original issuance only upon presentation of a certificate in a
form prescribed by the Company to comply with U.S. laws and
regulations.
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(2) Bearer Securities will not be issued in exchange for Registered
Securities.
(3) All payments of principal and interest (including original issue
discount) on Bearer Securities will be made outside the United
States by a Paying Agent located outside the United States unless
the Company determines that:
(A) such payments may not be made by such Paying Agent because
the payments are illegal or prevented by exchange controls
as described in Treasury Regulation ss. 1.163-5(c)(2)(v);
and
(B) making the payments in the United States would not have an
adverse tax effect on the Company.
If there is a change in the relevant provisions of U.S. laws or
Treasury Regulations or the judicial or administrative interpretation thereof, a
restriction set forth in paragraph (1), (2) or (3) above will not apply to a
series if the Company determines that the relevant provisions no longer apply to
the series or that failure to comply with the relevant provisions would not have
an adverse tax effect on the Company or on Securityholders or cause the series
to be treated as "registration-required" obligations under U.S. law.
The Company shall notify the Trustee of any determinations by the
Company under this Section.
"TREASURY REGULATIONS" means regulations of the U.S. Treasury
Department under the Internal Revenue Code of 1986, as amended.
SECTION 2.05. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent for a series other than
the Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of the persons entitled thereto all money held by the Paying Agent for
the payment of principal of or interest on the series, and will notify the
Trustee of any default by the Company in making any such payment.
While any such default continues, the Trustee may require a Paying
Agent to pay all money so held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent shall have no further liability for the
money.
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If the Company or an Affiliate acts as Paying Agent for a series, it
shall segregate and hold as a separate trust fund all money held by it as Paying
Agent for the series.
The Company may elect not to exchange or register the transfer of any
Security for a period of 15 days before a selection of Securities to be
redeemed.
SECTION 2.06. Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Transfer Agent, the Company shall
furnish to the Trustee semiannually and at such other times as the Trustee may
request a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Holders of Registered Securities and
Holders of Bearer Securities whose names are on the list referred to below.
The Transfer Agent shall keep a list of the names and addresses of
Holders of Bearer Securities who file a request to be included on such list. A
request will remain in effect for two years but successive requests may be made.
Whenever the Company or the Trustee is required to mail a notice to
all Holders of Registered Securities of a series, it also shall mail the notice
to Holders of Bearer Securities of the series whose names are on the list.
Whenever the Company is required to publish a notice to all Holders of
Bearer Securities of a series, it also shall mail the notice to such of them
whose names are on the list.
SECTION 2.07. Transfer and Exchange.
Where Registered Securities of a series are presented to the Transfer
Agent with a request to register a transfer or to exchange them for an equal
principal amount of Registered Securities of other denominations of the same
series, the Transfer Agent shall register the transfer or make the exchange if
its requirements for such transactions are met. Where Bearer Securities of a
series are presented to the Transfer Agent with a request to exchange them for
an equal principal amount of Bearer Securities of other denominations of the
same series, the Transfer Agent shall make the exchange if its requirements for
such transactions are met.
The Transfer Agent may require a Holder to pay a sum sufficient to
cover any taxes imposed on a transfer or exchange.
If a series provides for Registered and Bearer Securities and for
their exchange, Bearer Securities may be exchanged for Registered Securities and
Registered Securities may
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be exchanged for Bearer Securities as provided in the Securities or the
Securities Resolution if the requirements of the Transfer Agent for such
transactions are met and in the case of the exchange of registered securities
for bearer securities if Section 2.04 permits the exchange.
SECTION 2.08. Replacement Securities.
If the Holder of a Security or coupon claims that it has been lost,
destroyed or wrongfully taken, then, in the absence of notice to the Company or
the Trustee that the Security or coupon has been acquired by a bona fide
purchaser, the Company shall issue a replacement Security or coupon if the
Company and the Trustee receive:
(1) evidence satisfactory to them of the loss, destruction or taking;
(2) an indemnity bond satisfactory to them; and
(3) payment of a sum sufficient to cover their expenses and any taxes
for replacing the Security or coupon.
A replacement Security shall have coupons attached corresponding to those, if
any, on the replaced Security.
Every replacement Security or coupon is an additional obligation of
the Company.
SECTION 2.09. Outstanding Securities.
The Securities outstanding at any time are all the Securities
authenticated by the Registrar except for those cancelled by it, those delivered
to it for cancellation, and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.08, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Security is held by a bona fide purchaser.
If Securities are considered paid under Section 4.01, they cease to be
outstanding and interest on them ceases to accrue.
A Security does not cease to be outstanding because the Company or an
Affiliate holds the Security.
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SECTION 2.10. Discounted Debt Securities.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, the principal
amount of a Discounted Debt Security shall be the amount of principal that would
be due as of the date of such determination if payment of the Security were
accelerated on that date.
SECTION 2.11. Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company or an Affiliate shall be disregarded, except that for the
purposes of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Securities which the Trustee knows are
so owned shall be so disregarded.
SECTION 2.12. Global Securities.
If the Securities Resolution so provides, the Company may issue some
or all of the Securities of a series in temporary or permanent global form. A
global Security may be in registered form, in bearer form with or without
coupons or in uncertificated form. A global Security shall represent that amount
of Securities of a series as specified in the global Security or as endorsed
thereon from time to time. At the Company's request, the Registrar shall endorse
a global Security to reflect the amount of any increase or decrease in the
Securities represented thereby.
The Company may issue a global Security only to a depository
designated by the Company. A depository may transfer a global Security only as a
whole to its nominee or to a successor depository.
The Securities Resolution may establish, among other things, the
manner of paying principal and interest on a global Security and whether and
upon what terms a beneficial owner of an interest in a global Security may
exchange such interest for definitive Securities.
The Company, an Affiliate, the Trustee and any Agent shall not be
responsible for any acts or omissions of a depository, for any depository
records of beneficial ownership interests or for any transactions between the
depository and beneficial owners.
SECTION 2.13. Temporary Securities.
Until definitive Securities of a series are ready for delivery, the
Company may use temporary Securities. Temporary Securities shall be
substantially in the form of definitive
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Securities but may have variations that the Company considers appropriate for
temporary Securities. Temporary Securities may be in global form. Temporary
Bearer Securities may have one or more coupons or no coupons. Without
unreasonable delay, the Company shall deliver definitive Securities in exchange
for temporary Securities.
SECTION 2.14. Cancellation.
The Company at any time may deliver Securities to the Registrar for
cancellation. The Transfer Agent and the Paying Agent shall forward to the
Registrar any Securities and coupons surrendered to them for payment, exchange
or registration of transfer. The Registrar shall cancel all Securities or
coupons surrendered for payment, registration of transfer, exchange or
cancellation. The Registrar also will cancel all Bearer Securities and unmatured
coupons unless the Company requests the Registrar to hold the same for
redelivery. Any Bearer Securities so held shall be considered delivered for
cancellation under Section 2.09. The Registrar shall destroy cancelled
Securities and coupons unless the Company otherwise directs.
Unless the Securities Resolution otherwise provides, the Company may
not issue new Securities to replace Securities that the Company has paid or that
the Company has delivered to the Registrar for cancellation.
SECTION 2.15. Defaulted Interest.
If the Company defaults in a payment of interest on Registered
Securities, it need not pay the defaulted interest to Holders on the regular
record date. The Company may fix a special record date for determining Holders
entitled to receive defaulted interest, or the Company may pay defaulted
interest in any other lawful manner.
ARTICLE 3 -- REDEMPTION
SECTION 3.01. Notices to Trustee.
Securities of a series that are redeemable before maturity shall be
redeemable in accordance with their terms and, unless the Securities Resolution
otherwise provides, in accordance with this Article.
In the case of a redemption by the Company, the Company shall notify
the Trustee of the redemption date and the principal amount of Securities to be
redeemed. The Company shall notify the Trustee at least 45 days before the
redemption date unless a shorter notice is satisfactory to the Trustee.
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If the Company is required to redeem Securities, it may reduce the
principal amount of Securities required to be redeemed to the extent that it is
permitted a credit against such redemption requirement by the terms of the
Securities Resolution and notifies the Trustee of the amount of such credit and
the basis for it. If the reduction is based on a credit for acquired or redeemed
Securities that the Company has not previously delivered to the Registrar for
cancellation, the Company shall deliver the Securities at the same time as the
notice.
SECTION 3.02. Selection of Securities to Be Redeemed.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select the Securities to be redeemed by a method the Trustee
considers fair and appropriate. The Trustee shall make the selection from
Securities of the series outstanding not previously called for redemption. The
Trustee may select for redemption portions of the principal of Securities having
denominations larger than the minimum denomination for the series. Securities
and portions thereof selected for redemption shall be in amounts equal to the
minimum denomination for the series or an integral multiple thereof. Provisions
of this Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption.
SECTION 3.03. Notice of Redemption.
At least 30 but not more than 60 days before a redemption date, the
Company shall mail a notice of redemption by first-class mail to each Holder of
Registered Securities whose Securities are to be redeemed.
If Bearer Securities are to be redeemed, the Company shall publish a
notice of redemption in an Authorized Newspaper as provided in the Securities.
A notice shall identify the Securities of the series to be redeemed
and shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption, together with all coupons,
if any, maturing after the redemption date, must be surrendered
to the Paying Agent to collect the redemption price;
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(5) that interest on Securities called for redemption ceases to
accrue on and after the redemption date;
(6) whether the redemption by the Company is mandatory or optional;
and
(7) whether the redemption is conditional as provided in Section
3.04, and if so, the terms of the conditions, and that, if the
conditions are not satisfied or are not waived by the Company,
the Securities will not be redeemed and such a failure to redeem
will not constitute an Event of Default.
A redemption notice given by publication need not identify Registered
Securities to be redeemed.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense.
SECTION 3.04. Effect of Notice of Redemption.
Except as provided below, once notice of redemption is given,
Securities called for redemption become due and payable on the redemption date
at the redemption price stated in the notice.
A notice of redemption may provide that it is subject to the
occurrence of any event before the date fixed for such redemption as described
in such notice ("CONDITIONAL REDEMPTION"), and such notice of Conditional
Redemption shall be of no effect unless all such conditions to the redemption
have occurred on or before such date or have been waived by the Company in its
sole discretion.
SECTION 3.05. Payment of Redemption Price.
On or before the redemption date, the Company shall deposit with the
Paying Agent money sufficient to pay the redemption price of and accrued
interest on all Securities to be redeemed on that date.
When the Holder of a Security surrenders it for redemption in
accordance with the redemption notice, the Company shall pay to the Holder on
the redemption date the redemption price and accrued interest to such date,
except that:
(1) the Company will pay any such interest (except defaulted
interest) to Holders on the record date of Registered Securities
if the redemption date occurs on an interest payment date; and
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(2) the Company will pay any such interest to Holders of coupons that
mature on or before the redemption date upon surrender of such
coupons to the Paying Agent.
Coupons maturing after the redemption date on a called Security are
void absent a payment default on that date. Nevertheless, if a Holder surrenders
for redemption a Bearer Security missing any such coupons, the Company may
deduct the face amount of such coupons from the redemption price. If thereafter
the Holder surrenders to the Paying Agent the missing coupons, the Company will
return the amount so deducted. The Company may waive surrender of the missing
coupons if it receives an indemnity bond satisfactory to the Company.
SECTION 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Company
shall deliver to the Holder a new Security of the same series equal in principal
amount to the unredeemed portion of the Security surrendered.
ARTICLE 4 -- COVENANTS
SECTION 4.01. Payment of Securities.
The Company shall pay the principal of and interest on a series in
accordance with the terms of the Securities for the series, any related coupons,
and this Indenture. Principal and interest on a series shall be considered paid
on the date due if the Paying Agent for the series holds on that date money
sufficient to pay all principal and interest then due on the series.
SECTION 4.02. Overdue Interest.
Unless the Securities Resolution otherwise provides, the Company shall
pay interest on overdue principal of a Security of a series at the rate (or
Yield to Maturity in the case of a Discounted Debt Security) borne by the
series; the Company shall pay interest on overdue installments of interest at
the same rate or Yield to Maturity to the extent lawful.
SECTION 4.03. No Lien Created, etc.
This Indenture and the Securities do not create a Lien, charge or
encumbrance on any property of the Company or any Subsidiary.
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SECTION 4.04. Compliance Certificate.
The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company, a brief certificate signed by the
principal executive officer, principal financial officer or principal accounting
officer of the Company, as to the signer's knowledge of the Company's compliance
with all conditions and covenants under this Indenture (determined without
regard to any period of grace or requirement of notice provided herein).
Any other obligor on the Securities shall also deliver to the Trustee
such a certificate as to its compliance with this Indenture within 120 days
after the end of each of its fiscal years.
The certificates need not comply with Section 11.04.
SECTION 4.05. SEC Reports.
The Company shall file with the Trustee, within 15 days after the
Company is required to file the same with the SEC, copies of the annual reports
and of the information, documents, and other reports (or such portions of the
foregoing as the SEC may prescribe) which the Company is required to file with
the SEC pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934.
Any other obligor on the Securities shall do likewise as to the above
items which it is required to file with the SEC pursuant to those sections.
SECTION 4.06. Costs and Expenses of WEC Trusts.
The Company shall pay all debts and obligations (other than with
respect to the Trust Securities) and all costs and expenses of any WEC Trust
(including, but not limited to, all costs and expenses relating to the
organization of the applicable WEC Trust, the fees and expenses of any trustee
or trustees for the WEC Trust and all costs and expenses relating to the
operation of the applicable WEC Trust (other than with respect to the Trust
Securities)) and to pay any and all taxes, duties, assessments or other
governmental charges of whatever nature (other than United States withholding
taxes) imposed by the United States or any other taxing authority, so that the
net amounts received and retained by the applicable WEC Trust after paying such
fees, expenses, debts and obligations will be equal to the amounts the
applicable WEC Trust would have received and retained had no such fees,
expenses, debts and obligations been incurred by or imposed on the applicable
WEC Trust. The foregoing obligations of the Company are for the benefit of, and
shall be enforceable by, any person to whom such fees, expenses, debts and
obligations are owed (each, a "CREDITOR"), whether or not such
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Creditor has received notice thereof. Any such Creditor may enforce such
obligations of the Company directly against the Company, and the Company
irrevocably waives any right or remedy to require that any such Creditor take
any action against the applicable WEC Trust or any other person before
proceeding against the Company. The Company shall execute such additional
agreements as may be necessary to give full effect to the foregoing.
ARTICLE 5 -- SUCCESSORS
SECTION 5.01. When Company May Merge, etc.
Unless the Securities Resolution establishing a Series otherwise
provides, the Company shall not consolidate with or merge into any person in any
transaction in which the Company is not the survivor, or transfer all or
substantially all of its assets to any person, unless:
(1) the person is organized under the laws of the United States or a
State thereof or is organized under the laws of a foreign
jurisdiction and consents to the jurisdiction of the courts of
the United States or a State thereof;
(2) the person assumes by supplemental indenture all the obligations
of the Company under this Indenture, the Securities and any
coupons;
(3) all required approvals of any regulatory body having jurisdiction
over the transaction shall have been obtained;
(4) immediately after the transaction no Default exists; and
(5) the Company provides an Officers' Certificate and an Opinion of
Counsel to the effect that all the provisions in this Section
5.01 have been complied with.
The successor shall be substituted for the Company, and thereafter all
obligations of the Company under this Indenture, the Securities and any coupons
shall terminate.
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ARTICLE 6 -- DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.
Unless the Securities Resolution otherwise provides, an "EVENT OF
DEFAULT" on a series occurs if:
(1) the Company defaults in any payment of interest on any Securities
of the series when the same becomes due and payable and the
Default continues for a period of 60 days;
(2) the Company defaults in the payment of the principal and premium,
if any, of any Securities of the series when the same becomes due
and payable at maturity or upon redemption, acceleration or
otherwise;
(3) the Company defaults in the payment or satisfaction of any
sinking fund obligation with respect to any Securities of the
series as required by the Securities Resolution establishing such
series and the Default continues for a period of 60 days;
(4) the Company defaults in the performance of any of its other
agreements applicable to the series and the Default continues for
90 days after the notice specified below;
(5) the Company pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in
an involuntary case,
(C) consents to the appointment of a Custodian for it or for all
or substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
(6) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case,
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(B) appoints a Custodian for the Company or for all or
substantially all of its property, or
(C) orders the liquidation of the Company;
and the order or decree remains unstayed and in effect for 60
days; or
(7) there occurs any other Event of Default provided for in the
series.
The term "BANKRUPTCY LAW" means Title 11, U.S. Code or any similar
Federal or State law for the relief of debtors. The term "CUSTODIAN" means any
receiver, trustee, assignee, liquidator or a similar official under any
Bankruptcy Law.
A Default under clause (4) is not an Event of Default until the
Trustee or the Holders of at least 25% in principal amount of the series notify
the Company of the Default and the Company does not cure the Default within the
time specified after receipt of the notice. The notice must specify the Default,
demand that it be remedied and state that the notice is a "Notice of Default."
If Holders notify the Company of a Default, they shall notify the Trustee at the
same time.
The failure to redeem any Security subject to a Conditional Redemption
is not an Event of Default if any event on which such redemption is so
conditioned does not occur and is not waived before the scheduled redemption
date.
SECTION 6.02. Acceleration.
If an Event of Default occurs and is continuing on a series, the
Trustee by notice to the Company, or the Holders of at least 25% in principal
amount of the series (or, in the case of a series issued to a WEC Trust, so long
as any of the related preferred securities of such WEC Trust remain outstanding,
if, upon such Event of Default, the Trustee or the Holders of not less than 25%
in aggregate principal amount of such series fail to declare the principal of
all the Securities of such series to be so immediately due and payable, the
holders of 25% in aggregate liquidation amount of such preferred securities then
outstanding shall have such right) by notice to the Company and the Trustee, may
declare the principal of and accrued interest on all the Securities of the
series to be due and payable immediately. Discounted Debt Securities may provide
that the amount of principal due upon acceleration is less than the stated
principal amount.
The Holders of a majority in principal amount of the series by notice
to the Trustee may rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default on the series have been cured or waived except nonpayment of
principal or interest that has become due solely be-
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cause of the acceleration; provided, that in the case of a series issued to a
WEC Trust, so long as any of the related preferred securities of such WEC Trust
remain outstanding, the holders of a majority in aggregate liquidation amount of
such preferred securities then outstanding shall instead have such right to
rescind the of acceleration and its consequences with respect to such series,
subject to the same conditions set forth above.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing on a series, the
Trustee may pursue any available remedy to collect principal or interest then
due on the series, to enforce the performance of any provision applicable to the
series, or otherwise to protect the rights of the Trustee and Holders of the
series.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or coupons or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Securityholder in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
Unless the Securities Resolution otherwise provides, the Holders of a
majority in principal amount of a series (or, in the case of a series issued to
a WEC Trust, so long as any of the related preferred securities of such WEC
Trust remain outstanding, the holders of a majority in aggregate liquidation
amount of such preferred securities then outstanding) by notice to the Trustee
may waive an existing Default on the series and its consequences except:
(1) a Default in the payment of the principal of or interest on the
series, or
(2) a Default in respect of a provision that under Section 10.02
cannot be amended without the consent of each Securityholder
affected.
SECTION 6.05. Control by Majority.
The Holders of a majority in principal amount of a series may direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee, or of exercising any trust or power conferred on the Trustee,
with respect to such series. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture or if the Trustee in good
faith shall determine that the action or direction might involve the Trustee in
personal liability.
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SECTION 6.06. Limitation on Suits.
A Securityholder of a series may pursue a remedy with respect to the
series only if:
(1) the Holder gives to the Trustee notice of a continuing Event of
Default on the series;
(2) the Holders of at least 25% in principal amount of the series
make a request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or
expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in principal
amount of the series do not give the Trustee a direction
inconsistent with such request.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over another
Securityholder.
In the case of a series issued to a WEC Trust, any holder of the
related preferred securities of such WEC Trust shall have the right, upon the
occurrence and continuance of an Event of Default described in Sections 6.01(1)
and (2) hereof with respect to such series, to institute a suit directly against
the Company to enforce payment to such holder of the principal of, and premium,
if any, and interest on, the Securities having a principal amount equal to the
aggregate liquidation amount of such preferred securities held by such holder.
SECTION 6.07. Collection Suit by Trustee.
If an Event of Default in payment of interest, principal or sinking
fund specified in Section 6.01(1), (2) or (3) occurs and is continuing on a
series, the Trustee may recover judgment in its own name and as trustee of an
express trust against the Company for the whole amount of principal and interest
remaining unpaid on the series.
SECTION 6.08. Priorities.
If the Trustee collects any money for a series pursuant to this
Article, it shall pay out the money in the following order:
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First: to the Trustee for amounts due under Section 7.06;
Second: to Securityholders of the series for amounts due and unpaid
for principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable for principal and interest,
respectively; and
Third: to the Company.
The Trustee may fix a payment date for any payment to Securityholders.
ARTICLE 7 -- TRUSTEE
SECTION 7.01. Rights of Trustee.
(1) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the
document.
(2) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel. The Trustee
shall not be liable for any action it takes or omits to take in
good faith in reliance on the Certificate or Opinion.
(3) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due
care.
(4) The Trustee shall not be liable for any action it takes or omits
to take in good faith in accordance with a direction received by
it pursuant to Section 6.05.
(5) The Trustee may refuse to perform any duty or exercise any right
or power which it reasonably believes may expose it to any loss,
liability or expense unless it receives indemnity satisfactory to
it against such loss, liability or expense.
(6) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree with the Company.
Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
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(7) The Trustee shall have no duty with respect to a Default unless
a Trust Officer has actual knowledge of the Default. As used
herein, the term "actual knowledge" means the actual fact or
statement of knowing, without any duty to make any investigation
with regard thereto.
(8) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized and
within its powers.
(9) Any Agent shall have the same rights and be protected to the
same extent as if it were Trustee.
(10) The Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
SECTION 7.02. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities or coupons and may otherwise deal with the
Company or an Affiliate with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights.
SECTION 7.03. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities or any coupons; it shall not be accountable for
the Company's use of the proceeds from the Securities; it shall not be
responsible for any statement in the Securities or any coupons; it shall not be
responsible for any overissue; it shall not be responsible for determining
whether the form and terms of any Securities or coupons were established in
conformity with this Indenture; it shall not be responsible for determining
whether any Securities were issued in accordance with this Indenture; and it
shall not be responsible for the acts or omissions of any other Trustees
appointed hereunder.
SECTION 7.04. Notice of Defaults.
If a Default occurs and is continuing on a series and if the Trustee
has actual knowledge of such Default, the Trustee shall mail a notice of the
Default within 90 days after it occurs to Holders of Registered Securities of
the series. Except in the case of a Default in payment on a series, the Trustee
may withhold the notice if and so long as a committee of its Trust Officers in
good faith determines that withholding the notice is in the interest of Holders
of the series. The Trustee shall withhold notice of a Default described in
Section 6.01(4) until at least 60 days after it occurs.
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SECTION 7.05. Reports by Trustee to Holders.
Any report required by TIA (S) 313(a) to be mailed to Securityholders
shall be mailed by the Trustee on or before May 15th of each year.
A copy of each report at the time of its mailing to Securityholders
shall be filed with the SEC and each stock exchange on which any Securities are
listed. The Company shall notify the Trustee when any Securities are listed on a
stock exchange.
SECTION 7.06. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be limited
by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred by it. Such expenses shall include the reasonable compensation and
expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any loss or liability
incurred by it. The Trustee shall notify the Company promptly of any claim for
which it may seek indemnity. The Company shall defend the claim and the Trustee
shall cooperate in the defense. The Trustee may have separate counsel and the
Company shall pay the reasonable fees and expenses of such counsel. The Company
need not pay for any settlement made without its consent.
The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through its own negligence or willful
misconduct.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities and any coupons on all money
or property held or collected by the Trustee, except that held in trust to pay
principal or interest on particular securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(5) or (6) occurs, such expenses and the
compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law.
The provisions of this Section shall survive any termination or
discharge of this Indenture (including without limitation any termination under
any Bankruptcy Law) and the resignation or removal of the Trustee.
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SECTION 7.07. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the Securities may remove the Trustee by so
notifying the Trustee and may appoint a successor Trustee with the Company's
consent.
The Company may remove the Trustee if:
(1) the Trustee fails to comply with TIA (S)310(a) or (S)310(b) or
with Section 7.09;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a Custodian or other public officer takes charge of the Trustee
or its property;
(4) the Trustee becomes incapable of acting; or
(5) an event of the kind described in Section 6.01(5) or (6) occurs
with respect to the Trustee.
The Company also may remove the Trustee with or without cause if the
Company so notifies the Trustee three months in advance and if no Default occurs
during the three-month period.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in principal amount of the Securities may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with TIA (S) 310(a) or (S) 310(b) or
with Section 7.09, any Securityholder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
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A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of Registered Securities. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor Trustee,
subject to the lien provided for in Section 7.06.
SECTION 7.08. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act shall be the successor
Trustee.
SECTION 7.09. Trustee's Capital and Surplus.
The Trustee at all times shall have a combined capital and surplus of
at least $50,000,000 as set forth in its most recent published report of
financial condition.
ARTICLE 8 -- DISCHARGE OF INDENTURE
SECTION 8.01. Defeasance.
Securities of a series may be defeased in accordance with their terms
and, unless the Securities Resolution otherwise provides, in accordance with
this Article.
The Company at any time may terminate as to a series all of its
obligations under this Indenture, the Securities of the series ("legal
defeasance option"). The Company at any time may terminate as to a series its
obligations, if any, under any restrictive covenants which may be applicable to
a particular series ("covenant defeasance option"). However, in the case of the
legal defeasance option, the Company's obligations in Sections 2.03, 2.04, 2.05,
2.06, 2.07, 2.08, 7.06, 7.07 and 8.04 shall survive until the Securities of the
series are no longer outstanding; thereafter the Company's obligations in
Section 7.06 shall survive.
The Company may exercise its legal defeasance option notwithstanding
its prior exercise of its covenant defeasance option. If the Company exercises
its legal defeasance option, a series may not be accelerated because of an Event
of Default. If the Company exercises its covenant defeasance option, a series
may not be accelerated by reference to any restrictive covenants as to which the
covenant defeasance option applicable to such series has been so exercised.
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The Trustee upon request shall acknowledge in writing the discharge of
those obligations or restrictions that the Company terminates by defeasance.
SECTION 8.02. Conditions to Defeasance.
The Company may exercise as to a series its legal defeasance option or
its covenant defeasance option if:
(1) the Company irrevocably deposits in trust with the Trustee or
another trustee money or U.S. Government Obligations;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing
their opinion that the payments of principal and interest when
due on the deposited U.S. Government Obligations without
reinvestment plus any deposited money without investment will
provide cash at such times and in such amounts as will be
sufficient to pay principal and interest when due on all the
Securities of the series to maturity or redemption, as the case
may be;
(3) immediately after the deposit no Default exists;
(4) the deposit does not constitute a default under any other
agreement binding on the Company;
(5) the deposit does not cause the Trustee to have a conflicting
interest under TIA (S) 310(a) or (S) 310(b) as to another series;
(6) the Company delivers to the Trustee an Opinion of Counsel to the
effect that Holders of the series will not recognize income, gain
or loss for Federal income tax purposes as a result of the
defeasance;
(7) 91 days pass after the deposit is made and during the 91-day
period no Default specified in Section 6.01(5) or (6) occurs that
is continuing at the end of the period; and
(8) the Company provides an Officers' Certificate and an Opinion of
Counsel to the effect that all conditions precedent pursuant to
this Section 8.02 have been satisfied.
Before or after a deposit the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date in
accordance with Article 3.
<PAGE>
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"U.S. GOVERNMENT OBLIGATIONS" means direct obligations of (i) the
United States or (ii) an agency or instrumentality of the United States, the
payment of which is unconditionally guaranteed by the United States, which, in
either case, have the full faith and credit of the United States pledged for
payment and which are not callable at the issuer's option, or certificates
representing an ownership interest in such obligations.
SECTION 8.03. Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 8.02. It shall apply the deposited money
and the money from U.S. Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of principal and interest on
Securities of the defeased series.
SECTION 8.04. Repayment to Company.
The Trustee and the Paying Agent shall promptly turn over to the
Company upon request any excess money or securities held by them at any time.
The Trustee and the Paying Agent shall pay to the Company upon request
any money held by them for the payment of principal or interest that remains
unclaimed for two years. After payment to the Company, Securityholders entitled
to the money must look to the Company for payment as unsecured general creditors
unless an abandoned property law designates another person.
ARTICLE 9 -- CONVERSION
SECTION 9.01. Conversion Privilege.
If the Securities Resolution establishing the terms of a series of
securities so provides, Securities of any series may be convertible at the
option of the holders into or for Common Stock or other equity or debt
securities (a "CONVERSION RIGHT"). The Securities Resolution may establish,
among other things, the Conversion Rate, provisions for adjustments to the
Conversion Rate and limitations upon exercise of the Conversion Right.
Unless the Securities Resolution otherwise provides, a Holder may
convert a portion of a Security if the portion is $1,000 or an integral
multiples thereof. Provisions of this Indenture that apply to the conversion of
the aggregate principal amount of a Security also apply to conversion of a
portion of it.
<PAGE>
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The Securities Resolution providing for Securities with a Conversion
Right may establish any terms in addition to, or other than (including terms
inconsistent with), those set forth in this Article 9 with respect to the
conversion of the Securities established thereby (other than those of Section
9.16).
SECTION 9.02. Conversion Procedure.
To convert a Security a Holder must satisfy all requirements in the
Securities or the Securities Resolution and (i) complete and manually sign the
conversion notice (the "CONVERSION NOTICE") provided for in the Securities
Resolution or the Security (or complete and manually sign a facsimile thereof)
and deliver such notice to the Conversion Agent or any other office or agency
maintained for such purpose, (ii) surrender the Security to the Conversion Agent
or at such other office or agency by physical delivery, (iii) if required,
furnish appropriate endorsements and transfer documents, and (iv) if required,
pay all transfer or similar taxes. The date on which such notice shall have been
received by and the Security shall have been so surrendered to the Conversion
Agent is the "CONVERSION DATE." Such Conversion Notice shall be irrevocable and
may not be withdrawn by a Holder for any reason.
The Company will complete settlement of any conversion of Securities
not later than the fifth business day following the Conversion Date in respect
of the cash portion elected to be delivered in lieu of the securities into which
the Security is convertible and not later than the seventh business day
following the Conversion Date in respect of the portion to be settled in such
securities.
If any Security is converted between the record date for the payment
of interest and the next succeeding interest payment date, such Security must be
accompanied by funds equal to the interest payable on such succeeding interest
payment date on the principal amount so converted (unless such Security shall
have been called for redemption during such period, in which case no such
payment shall be required). A Security converted on an interest payment date
need not be accompanied by any payment, and the interest on the principal amount
of the Security being converted will be paid on such interest payment date to
the registered holder of such Security on the immediately preceding record date.
Subject to the aforesaid right of the registered holder to receive interest, no
payment or adjustment will be made on conversion for interest accrued on the
converted Security or for interest, dividends or other distributions payable on
any security issued on conversion.
If a Holder converts more than one Security at the same time, the
securities into which the Security is convertible issuable or cash payable upon
the conversion shall be based on the total principal amount of the Securities
converted.
<PAGE>
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Upon surrender of a Security that is converted in part the Trustee
shall authenticate for the Holder a new Security equal in principal amount to
the unconverted portion of the Security surrendered; except that if a global
Security is so surrendered the Trustee shall authenticate and, if applicable,
deliver to the depository a new global Security in a denomination equal to and
in exchange for the unconverted portion of the principal of the global Security
so surrendered.
If the last day on which a Security may be converted is a Legal
Holiday in a place where a Conversion Agent is located, the Security may be
surrendered to that Conversion Agent on the next succeeding day that is not a
Legal Holiday.
SECTION 9.03. Taxes on Conversion.
If a Holder of a Security exercises a Conversion Right, the Company
shall pay any documentary, stamp or similar issue or transfer tax due on the
issue of the securities into which the Security is convertible upon the
conversion. However, the Holder shall pay any such tax which is due because
securities or other property are issued in a name other than the Holder's name.
Nothing herein shall preclude any income tax or other withholding required by
law or regulations.
SECTION 9.04. Company Determination Final.
Any determination that the Board of Directors makes pursuant to this
Article 9 or consistent with terms provided for in any Securities Resolution is
conclusive, absent manifest error.
SECTION 9.05. Trustee's and Conversion Agent's Disclaimer.
The Trustee (and each Conversion Agent other than the Company) has no
duty to determine when or if an adjustment under this Article 9 or any
Securities Resolution should be made, how it should be made or calculated or
what it should be. The Trustee (and each Conversion Agent other than the
Company) makes no representation as to the validity or value of any securities
issued upon conversion of Securities. The Trustee (and each Conversion Agent
other than the Company) shall not be responsible for the Company's failure to
comply with this Article 9 or any provision of a Securities Resolution relating
to a Conversion Right.
SECTION 9.06. Company to Provide Conversion Securities.
The Company shall reserve out of its authorized but unissued Common
Stock or its Common Stock held in treasury sufficient shares to permit the
conversion of all of the Securities convertible into Common Stock. The Company
shall arrange and make available
<PAGE>
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for issuance upon conversion the full amount of any other securities into which
the Securities are convertible to permit such conversion of the Securities.
All shares of Common Stock or other equity securities of any person
which may be issued upon conversion of the Securities shall be validly issued,
fully paid and non-assessable, subject to the personal liability which may be
imposed on shareholders by Section 180.0622(2)(b) of the Wisconsin Business
Corporation Law (or any successor provision), as judicially interpreted, for
debts owing to employees for services performed.
The Company will comply with all securities laws regulating the offer
and delivery of securities upon conversion of Securities.
SECTION 9.07. Cash Settlement Option.
If the Securities Resolution so provides, the Company may elect to
satisfy, in whole or in part, a Conversion Right of Securities convertible into
Common Stock or other securities of any person by the delivery of cash. The
amount of cash to be delivered shall be equal to the Market Price on the last
Trading Day preceding the applicable Conversion Date of a share of Common Stock
or other securities of any person into which the Securities are convertible
multiplied by the number of shares of Common Stock or the number of shares or
principal amount of other securities into which the Securities are convertible,
respectively, in respect of which the Company elects to deliver cash. If the
Company elects to satisfy, in whole or in part, a Conversion Right by the
delivery of shares of Common Stock or other securities, no fractional shares or
portion of other securities will be delivered. Instead, the Company will pay
cash based on the Market Price for such fractional share of Common Stock or
portion of other securities.
The "MARKET PRICE" of the Common Stock into which Securities or other
equity securities into which the Securities are convertible may be converted
pursuant to a Securities Resolution or this Article 9 on any Trading Day means
the weighted average per share sale price for all sales of the Common Stock or
other equity securities on such Trading Day (or, if the information necessary to
calculate such weighted average per share sale price is not reported, the
average of the high and low sale prices, or if no sales are reported, the
average of the bid and ask prices or, if more than one in either case, the
average of the average bid and average ask prices), as reported in the composite
transactions for the New York Stock Exchange, or if the Common Stock or other
equity securities into which the Securities are convertible are not listed or
admitted to trading on such exchange, as reported in the composite transactions
for the principal national or regional United States securities exchange on
which the Common Stock or other equity securities into which the Securities are
convertible are listed or admitted to trading or, if the Common Stock or other
equity securities into which the Securities are convertible are not listed or
admitted to trading on a United States national or
<PAGE>
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regional securities exchange, as reported by NASDAQ or by the National Quotation
Bureau Incorporated, or if not so reported, as determined in the manner set
forth in the appropriate Securities Resolution. In the absence of such
quotations, the Company shall be entitled to determine the Market Price on the
basis of such quotations as it considers appropriate.
The "MARKET PRICE" of any debt security into which Securities are
convertible shall be determined as set forth in the applicable Securities
Resolution.
SECTION 9.08. Adjustment in Conversion Rate for Change in Capital Stock.
If the Securities are convertible into Common Stock and the Company:
(1) pays a dividend or makes a distribution on its Common Stock in
shares of its Common Stock;
(2) subdivides its outstanding shares of Common Stock into a greater
number of shares;
(3) combines its outstanding shares of Common Stock into a smaller
number of shares;
(4) pays a dividend or makes a distribution on its Common Stock in
shares of its Capital Stock other than Common Stock; or
(5) issues by reclassification of its Common Stock any shares of its
Capital Stock,
then the conversion privilege and the Conversion Rate in effect immediately
prior to such action shall be adjusted so that the Holder of a Security
thereafter converted may receive the number of shares of Capital Stock of the
Company (or, at the Company's option, an equivalent amount in cash) which he
would have owned immediately following such action if he had converted the
Security immediately prior to such action.
The adjustment shall become effective immediately after the record
date in the case of a dividend or distribution and immediately after the
effective date in the case of a subdivision, combination or reclassification.
If the security into which the Securities are convertible is other
than Common Stock of the Company, the conversion rate shall be subject to
adjustment as set forth in the applicable Securities Resolution.
<PAGE>
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If after an adjustment a Holder of a Security may, upon conversion,
receive shares of two or more classes of Capital Stock of the Company or other
securities, the Board of Directors of the Company shall determine the allocation
of the adjusted Conversion Rate between or among the classes of Capital Stock or
other securities. After such allocation, the conversion privilege and the
Conversion Rate of each class of Capital Stock or other securities shall
thereafter be subject to adjustment on terms comparable to those applicable to
Common Stock in this Article or in such Securities Resolution.
SECTION 9.09. Adjustment in Conversion Rate for Common Stock Issued Below
Market Price.
If the Securities are convertible into Common Stock, and the Company
issues to all holders of Common Stock rights, options or warrants to subscribe
for or purchase shares of Common Stock, or any securities convertible into or
exchangeable for shares of Common Stock, or rights, options or warrants to
subscribe for or purchase such convertible or exchangeable securities at a Price
Per Share (as defined and determined according to the formula given below) lower
than the current Market Price on the date of such issuance, the Conversion Rate
shall be adjusted in accordance with the following formula:
AC = CC - (O + N )
-----
O - R
-
M
where:
AC = the adjusted Conversion Rate.
CC = the then current Conversion Rate.
O = the number of shares of Common Stock outstanding immediately prior to
such issuance (which number shall include shares owned or held by or
for the account of the Company).
N = the "Number of Shares," which (i) in the case of rights, options or
warrants to subscribe for or purchase shares of Common Stock or of
securities convertible into or exchangeable for shares of Common
Stock, is the maximum number of shares of Common Stock initially
issuable upon exercise, conversion or exchange thereof; and (ii) in
the case of rights, options or warrants to subscribe for or purchase
convertible or exchangeable securities, is the maximum number of
shares of Common Stock initially issuable upon the conversion or
exchange of the convertible or exchangeable securities issuable upon
the exercise of such rights, options or warrants.
<PAGE>
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R = the proceeds received or receivable by the Company, which (i) in the
case of rights, options or warrants to subscribe for or purchase
shares of Common Stock or of securities convertible into or
exchangeable for shares of Common Stock, is the aggregate amount
received or receivable by the Company in consideration for the sale
and issuance of such rights, options, warrants or convertible or
exchangeable securities, plus the minimum aggregate amount of
additional consideration, other than the convertible or exchangeable
securities, payable to the Company upon exercise, conversion or
exchange thereof; and (ii) in the case of rights, options or warrants
to subscribe for or purchase convertible or exchangeable securities,
is the aggregate amount received or receivable by the Company in
consideration for the sale and issuance of such rights, options or
warrants, plus the minimum aggregate consideration payable to the
Company upon the exercise thereof, plus the minimum aggregate amount
of additional consideration, other than the convertible or
exchangeable securities, payable upon the conversion or exchange of
the convertible or exchangeable securities; provided, that in each
--------
case the proceeds received or receivable by the Company shall be
deemed to be the amount of gross cash proceeds without deducting
therefrom any compensation paid or discount allowed in the sale,
underwriting or purchase thereof by underwriters or dealers or others
performing similar services or any expenses incurred in connection
therewith.
M = the current Market Price per share of Common Stock on the date of
issue of the rights, options or warrants to subscribe for or purchase
shares of Common Stock or the securities convertible into or
exchangeable for shares of Common Stock or the rights, options or
warrants to subscribe for or purchase convertible or exchangeable
securities.
"PRICE PER SHARE" shall be defined and determined according to the
following formula:
P = R
-
N
where:
P = Price Per Share
and R and N have the meanings assigned above.
If the Company shall issue rights, options, warrants or convertible or
exchangeable securities with respect to its Common Stock for a consideration
consisting, in whole or in part, of property other than cash the amount of such
consideration shall be deter-
<PAGE>
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mined in good faith by the Board of Directors whose determination shall be
conclusive and evidenced by a resolution of the Board of Directors filed with
the Trustee.
The adjustment shall be made successively whenever any such additional
rights, options, warrants or convertible or exchangeable securities with respect
to its Common Stock are issued, and shall become effective immediately after the
date of issue of such shares, rights, options, warrants or convertible or
exchangeable securities.
To the extent that such rights, options or warrants to acquire Common
Stock expire unexercised or to the extent any convertible or exchangeable
securities with respect to its Common Stock are redeemed by the Company or
otherwise cease to be convertible or exchangeable into shares of Common Stock,
the Conversion Rate shall be readjusted to the Conversion Rate which would then
be in effect had the adjustment made upon the date of issuance of such rights,
options, warrants or convertible or exchangeable securities been made upon the
basis of the issuance of rights, options or warrants to subscribe for or
purchase only the number of shares of Common Stock as to which such rights,
options or warrants were actually exercised and the number of shares of Common
Stock that were actually issued upon the conversion or exchange of the
convertible or exchangeable securities.
If the Securities are convertible into securities other than the
Common Stock, any adjustment in the Conversion Rate required for the issuance or
sale of the securities into which the Securities are convertible shall be made
as set forth in the Securities Resolution.
SECTION 9.10. Adjustment for Other Distributions.
If the Securities are initially convertible into Common Stock and the
Company distributes to all holders of its Common Stock any of its assets or debt
securities or any rights or warrants to purchase assets or debt securities of
the Company, the Conversion Rate shall be adjusted in accordance with the
following formula:
AC = CC - (O - M)
---------
((O - M) - F)
where:
AC = the adjusted Conversion Rate.
CC = the then current Conversion Rate.
O = the number of shares of Common Stock outstanding on the record date
mentioned below (which number shall include shares owned or held by or
for the account of the Company).
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M = the current Market Price per share of Common Stock on the record date
mentioned below.
F = the fair market value on the record date of the assets, securities,
rights or warrants distributed. The Board of Directors of the Company
shall determine the fair market value.
The adjustment shall become effective immediately after the record
date for the determination of stockholders entitled to receive the distribution.
If the securities into which the Securities are convertible are other
than Common Stock, any adjustments for such other distribution shall be made as
set forth in the Securities Resolution.
This Section does not apply to cash dividends or distributions or to
reclassifications or distributions referred to in Section 9.08. Also, this
Section does not apply to shares issued below Market Price referred to in
Section 9.09.
SECTION 9.11. Voluntary Adjustment.
The Company at any time may increase the Conversion Rate, temporarily
or otherwise, by any amount but in no event shall such Conversion Rate result in
the issuance of Capital Stock at a price less than the par value of such Capital
Stock at the time such increase is made.
SECTION 9.12. When Adjustment May Be Deferred.
No adjustment in the Conversion Rate need be made unless the
adjustment would require a change of at least 1% in the Conversion Rate. Any
adjustments that are not made due to the immediately preceding sentence shall be
carried forward and taken into account in any subsequent adjustment; provided,
--------
that any adjustment carried forward shall be deferred not in excess of three
years, whereupon any adjustment to the Conversion Rate will be effected.
All calculations under this Article 9 shall be made to the nearest
cent or to the nearest 1/100th of a share, as the case may be.
SECTION 9.13. When No Adjustment Required.
Except as set forth in Section 9.09, no adjustment in the Conversion
Rate shall be made because the Company issues, in exchange for cash, property or
services, shares of
<PAGE>
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Common Stock, or any securities convertible into shares of Common Stock, or
securities carrying the right to purchase shares of Common Stock or such
convertible securities.
No adjustment in the Conversion Rate need be made for rights to
purchase or the sale of Common Stock pursuant to a Company plan providing for
reinvestment of dividends or interest.
No adjustment in the Conversion Rate need be made for a change in the
par value of the Common Stock or other securities having a par value.
No adjustment need be made for a transaction referred to in Section
9.08, 9.09 or 9.10 if Securityholders are to participate in the transaction on a
basis and with notice that the Board of Directors determines to be fair and
appropriate in light of the basis and notice on which holders of Common Stock or
other securities into which the Securities are convertible participate in the
transaction.
SECTION 9.14. Notice of Adjustment.
Whenever the Conversion Rate is adjusted, the Company shall promptly
mail to Holders of Securities affected a notice of the adjustment. The Company
shall file with the Trustee an Officers' Certificate or a certificate from the
Company's independent public accountants stating the facts requiring the
adjustment and the manner of computing it. The certificate shall be conclusive
evidence that the adjustment is correct, absent manifest error.
SECTION 9.15. Notice of Certain Transactions.
If:
(1) the Company proposes to take any action that would require an
adjustment in the Conversion Rate,
(2) the Company proposes to take any action that would require a
supplemental indenture pursuant to Section 9.16, or
(3) there is a proposed liquidation or dissolution of the Company
or of the issuer of any other security into which the
Securities are convertible,
the Company shall mail to registered Holders of Securities of any affected
series a notice stating the proposed record date for a dividend or distribution
or the proposed effective date of a subdivision, combination, reclassification,
consolidation, merger, transfer, lease, liquidation or dissolution. The Company
shall mail the notice at least 15 days before such date. Failure to mail the
notice or any defect in it shall not affect the validity of the transaction.
<PAGE>
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SECTION 9.16. Reorganization of the Company.
If the Company is a party to a transaction subject to Section 5.01,
the successor corporation (if other than the Company) shall enter into a
supplemental indenture which shall provide that the Holder of a Security may
convert it into the kind and amount of securities, cash or other assets which he
would have owned immediately after the consolidation, merger or transfer if he
had converted the Security immediately before the effective date of the
transaction. The supplemental indenture shall provide for adjustments which
shall be as nearly equivalent as may be practical to the adjustments provided
for in this Article. The successor company shall mail to Holders of Securities
of any affected series a notice briefly describing the supplemental indenture.
If this Section applies, Sections 9.08, 9.09 and 9.10 do not apply.
ARTICLE 10 -- AMENDMENTS
SECTION 10.01. Without Consent of Holders.
The Company and the Trustee may amend this Indenture or the Securities
without the consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article 5 or Section 9.16;
(3) to provide that specific provisions of this Indenture shall not
apply to a series not previously issued;
(4) to create a series and establish its terms;
(5) to provide for a separate Trustee for one or more series; or
(6) to make any change that does not materially adversely affect
the rights of any Securityholder.
SECTION 10.02. With Consent of Holders.
Unless the Securities Resolution otherwise provides, the Company and
the Trustee may amend this Indenture, the Securities and any coupons with the
written consent of the Holders of a majority in principal amount of the
Securities of all series affected by the amendment voting as one class; provided
that, in the case of a series issued to a WEC Trust,
<PAGE>
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so long as any of the related preferred securities of such WEC Trust remains
outstanding, no such amendment shall be made that adversely affects the holders
of such preferred securities in any material respect, and no termination of this
Indenture shall occur, without the prior consent of the holders of not less than
a majority in aggregate liquidation amount of such preferred securities then
outstanding unless and until the principal (and premium, if any) of the
Securities of such series and all accrued and unpaid interest thereon have been
paid in full; and provided further that, in the case a series issued to a WEC
Trust, so long as any of the related preferred securities of such WEC Trust
remain outstanding, no amendment shall be made to the third paragraph of Section
6.06 of this Indenture without the prior written consent of the holders of each
such preferred security then outstanding unless and until the principal (and
premium, if any) of the Securities of such series and all accrued and unpaid
interest thereon have been paid in full. However, without the consent of each
Securityholder affected, an amendment under this Section may not:
(1) reduce the amount of Securities whose Holders must consent to an
amendment;
(2) reduce the interest on or change the time for payment of interest
on any Security (except an election to defer interest in
accordance with the applicable Securities Resolutions and Section
2.01(30) hereof);
(3) change the fixed maturity of any Security;
(4) reduce the principal of any non-Discounted Debt Security or
reduce the amount of principal of any Discounted Debt Security
that would be due upon an acceleration thereof;
(5) change the currency in which principal or interest on a Security
is payable;
(6) make any change that materially adversely affects the right to
convert or exchange any Security; or
(7) make any change in Section 6.04 or 10.02, except to increase the
amount of Securities whose Holders must consent to an amendment
or waiver or to provide that other provisions of this Indenture
cannot be amended or waived without the consent of each
Securityholder affected thereby.
An amendment of a provision included solely for the benefit of one or
more series does not affect Securityholders of any other series.
<PAGE>
-41-
Securityholders need not consent to the exact text of a proposed
amendment or waiver; it is sufficient if they consent to the substance thereof.
SECTION 10.03. Compliance with Trust Indenture Act.
Every amendment pursuant to Section 10.01 or 10.02 shall be set forth
in a supplemental indenture (except any amendment pursuant to Section 10.01(4),
which may be set forth in a Securities Resolution) that complies with the TIA.
If a provision of the TIA requires or permits a provision of this
Indenture and the TIA provision is amended, then the Indenture provision shall
be automatically amended to like effect.
SECTION 10.04. Effect of Consents.
An amendment or waiver becomes effective in accordance with its terms
and thereafter binds every Securityholder entitled to consent to it.
A consent to an amendment or waiver by a Holder of a Security is a
continuing consent by the Holder and every subsequent Holder of a Security that
evidences the same debt as the consenting Holder's Security. Any Holder or
subsequent Holder may revoke the consent as to his Security if the Trustee
receives notice of the revocation before the amendment or waiver becomes
effective.
The Company may fix a record date for the determination of Holders of
Registered Securities entitled to give a consent. The record date shall not be
less than 10 nor more than 60 days prior to the first written solicitation of
Securityholders.
SECTION 10.05. Notation on or Exchange of Securities.
The Company or the Trustee may place an appropriate notation about an
amendment or waiver on any Security thereafter authenticated. The Company may
issue in exchange for affected Securities new Securities that reflect the
amendment or waiver.
SECTION 10.06. Trustee Protected.
The Trustee need not sign any supplemental indenture that adversely
affects its rights. The Trustee shall be provided with, and shall be fully
protected in relying upon, an Opinion of Counsel and an Officers' Certificate
each stating that the execution of any amendment or supplement or waiver
authorized pursuant to this Article is authorized or permitted by this
Indenture, and that such amendment or supplement or waiver constitutes the
legal, valid and binding obligation of the Company.
<PAGE>
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ARTICLE 11 -- MISCELLANEOUS
SECTION 11.01. Trust Indenture Act.
The provisions of TIA (S)(S) 310 through 317 that impose duties on any
person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not expressly set forth herein.
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the required provision shall control. If any provision of this Indenture
modifies or excludes any provision of the TIA that may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or excluded, as the case may be.
SECTION 11.02. Notices.
Any notice by one party to another is duly given if in writing and
delivered in person, sent by facsimile transmission confirmed by mail or mailed
by first-class mail to the other's address shown below:
Company:
Wisconsin Energy Corporation
231 West Michigan Street
Milwaukee, Wisconsin 53201
Fax: (414) 221-5068
Attention: Chief Financial Officer
Trustee:
The First National Bank of Chicago
One First National Plaza, Suite IL1-0126
Chicago, Illinois 60670-0126
Fax: (312) 407-1708
Attention: Corporate Trust Division
A party by notice to the other parties may designate additional or
different addresses for subsequent notices.
<PAGE>
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Any notice mailed to a Securityholder shall be mailed to his address
shown on the register kept by the Transfer Agent or on the list referred to in
Section 2.06. Failure to mail a notice to a Securityholder or any defect in a
notice mailed to a Securityholder shall not affect the sufficiency of the notice
mailed to other Securityholders or the sufficiency of any published notice.
If a notice is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it.
If the Company mails a notice to Securityholders, it shall mail a copy
to the Trustee and each Agent at the same time.
If in the Company's opinion it is impractical to mail a notice
required to be mailed or to publish a notice required to be published, the
Company may give such substitute notice as the Trustee approves. Failure to
publish a notice as required or any defect in it shall not affect the
sufficiency of any mailed notice.
All notices shall be in the English language, except that any
published notice may be in an official language of the country of publication.
A "notice" includes any communication required by this Indenture.
SECTION 11.03. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied
with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 11.04. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion
has read such covenant or condition;
<PAGE>
-44-
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, 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
(4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
SECTION 11.05. Rules by Company and Agents.
The Company may make reasonable rules for action by or a meeting of
Securityholders. An Agent may make reasonable rules and set reasonable
requirements for its functions.
SECTION 11.06. Legal Holidays.
A "LEGAL HOLIDAY" is a Saturday, a Sunday or a day on which banking
institutions are not required to be open or a day on which the Federal Reserve
Bank of New York is not open. If a payment date is a Legal Holiday at a place of
payment, unless the Securities Resolution establishing a series otherwise
provides with respect to Securities of the series, payment may be made at that
place on the next succeeding day that is not a Legal Holiday, and no interest
shall accrue for the intervening period except that, if such next succeeding day
is in the next succeeding calendar year, payment shall be made on the date
immediately preceding such Legal Holiday.
SECTION 11.07. No Recourse Against Others.
All liability described in the Securities of any director, officer,
employee or stockholder, as such, of the Company is waived and released.
SECTION 11.08. Duplicate Originals.
The parties may sign any number of copies of this Indenture. One
signed copy is enough to prove this Indenture.
<PAGE>
-45-
SECTION 11.09. Governing Law.
The laws of the State of Wisconsin shall govern this Indenture, the
Securities and any coupons, unless federal law governs.
<PAGE>
Exhibit 4.46
S-1
SIGNATURES
Dated: as of March 15, 1999 WISCONSIN ENERGY CORPORATION
By /s/ Calvin H. Baker
------------------------------
Name: Calvin H. Baker
Title: Treasurer and Chief
Financial Officer
Dated: as of March 15, 1999 THE FIRST NATIONAL BANK OF
CHICAGO
By /s/ Diane Swanson
------------------------------
Name: Diane Swanson
Title: Assistant Vice President
<PAGE>
EXHIBIT A
A Form of Registered Security
No. [$]
WISCONSIN ENERGY CORPORATION
[Title of Security]
WISCONSIN ENERGY CORPORATION
promises to pay to
or registered assigns
the principal sum of Dollars on ,
Interest Payment Dates:
Record Dates:
Dated:
THE FIRST NATIONAL BANK OF CHICAGO
Transfer Agent and Paying Agent
WISCONSIN ENERGY CORPORATION
By: ___________________________________
[Title of Authorized Officer]
By: ___________________________________
[Title of the Authorized Officer]
(SEAL)
Authenticated:
THE FIRST NATIONAL BANK OF CHICAGO
Registrar
By: _____________________________
Authorized Signature
A-1
<PAGE>
WISCONSIN ENERGY CORPORATION
[Title of Security]
[Explanatory Notes follow Exhibit B]
1. INTEREST./1/
Wisconsin Energy Corporation ("Company"), a Wisconsin
corporation, promises to pay interest on the principal amount
of this Security at the rate per annum shown above. The
Company will pay interest on and of each year commencing , .
Interest on the Securities will accrue from the most recent
date to which interest has been paid or, if no interest has
been paid, from , . Interest will be computed on the basis of
a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT./2/
The Company will pay interest on the Securities to the persons
who are registered holders of Securities at the close of
business on the record date for the next interest payment
date, except as otherwise provided in the Indenture. Holders
must surrender Securities to a Paying Agent to collect
principal payments. The Company will pay principal and
interest in money of the United States that at the time of
payment is legal tender for payment of public and private
debts. The Company may pay principal and interest by check
payable in such money. It may mail an interest check to a
holder's registered address.
3. SECURITIES AGENTS./2A/
Initially, The First National Bank of Chicago, Attention:
Corporate Trust Division, will act as Paying Agent, Transfer
Agent and Registrar. The Company may change any Paying Agent
or Transfer Agent without notice or provide for more than one
such agent. The Company or any Affiliate may act in any such
capacity. Subject to certain conditions, the Company may
change the Trustee.
A-2
<PAGE>
4. INDENTURE.
The Company issued the securities of this series
("Securities") under an Indenture dated as of [ ], 1999
("Indenture") between the Company and The First National Bank
of Chicago (the "Trustee"). The terms of the Securities
include those stated in the Indenture and in the Securities
Resolution creating the Securities and those made part of the
Indenture by the Trust Indenture Act of 1939 (15 U.S. Code
(S)(S) 77aaa-77bbbb). Securityholders are referred to the
Indenture, the Securities Resolution and the Act for a
statement of such terms.
5. OPTIONAL REDEMPTION./3/
On or after , the Company may redeem all the Securities at
any time or some of them from time to time at the following
redemption prices (expressed in percentages of principal
amount), plus accrued interest to the redemption date.
If redeemed during the 12-month period beginning,
Year Percentage Year Percentage
---- ---------- ---- ----------
and thereafter at 100%.
6. MANDATORY REDEMPTION./4/
The Company will redeem $ principal amount of Securities on
and on each thereafter through at a redemption price
of 100% of principal amount, plus accrued interest to the
redemption date./5/ The Company may reduce the principal
amount of Securities to be redeemed pursuant to this paragraph
by subtracting 100% of the principal amount (excluding
premium) of any Securities (i) that the Company has acquired
or that the Company has redeemed other than pursuant to this
paragraph and (ii) that the Company has delivered to the
Registrar for cancellation. The Company may so subtract the
same Security only once.
7. ADDITIONAL OPTIONAL REDEMPTION./6/
In addition to redemptions pursuant to the above paragraph(s),
the Company may redeem not more than $ principal amount of
Securities on
A-3
<PAGE>
and on each thereafter through at a redemption
price of 100% of principal amount, plus accrued interest to
the redemption date.
8. NOTICE OF REDEMPTION./7/
Notice of redemption will be mailed at least 30 but not more
than 60 days before the redemption date to each holder of
Securities to be redeemed at his registered address.
A notice of redemption may provide that it is subject to the
occurrence of any event before the date fixed for such
redemption as described in such notice ("Conditional
Redemption") and such notice of Conditional Redemption shall
be of no effect unless all such conditions to the redemption
have occurred before such date or have been waived by the
Company.
9. CONVERSION./8/
A Holder of a Security may convert it into Common Stock of the
Company or cash, or a combination thereof, at the Company's
option, at any time before the close of business on
___________, or, if the Security is called for redemption, the
Holder may convert it at any time before the close of business
on the redemption date. The initial Conversion Rate is
____________ (or an equivalent amount in cash) per $1,000
principal amount of the Securities, subject to adjustment as
provided in Article 9 of the Indenture./9/ The Company will
deliver a check in lieu of any fractional share. On conversion
no payment or adjustment for interest accrued on the
Securities will be made nor for dividends on the Common Stock
issued on conversion. If any Security is converted between the
record date for the payment of interest and the next
succeeding interest payment date, such Security must be
accompanied by funds equal to the interest payable on such
succeeding interest payment date on the principal amount so
converted (unless such Security shall have been called for
redemption, in which case no such payment shall be required).
A Security converted on an interest payment date need not be
accompanied by any payment, and the interest on the principal
amount of the Security being converted will be paid on such
interest payment date to the registered holder of such
Security on the immediately preceding record date.
To convert a Security a Holder must (1) complete and sign the
conversion notice on the back of the Security, (2) surrender
the Security to a Conversion Agent, (3) furnish appropriate
endorsements and transfer documents if required by the
Registrar or Conversion Agent and (4) pay any transfer or
similar tax if
A-4
<PAGE>
required. A Holder may convert a portion of a Security if the
portion is $1,000 or an integral multiple of $1,000.
10. DENOMINATIONS, TRANSFER, EXCHANGE.
The Securities are in registered form without coupons in
denominations of $1,000/10/ and whole multiples of $1,000. The
transfer of Securities may be registered and Securities may be
exchanged as provided in the Indenture. The Transfer Agent may
require a holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and
fees required by law or the Indenture. The Transfer Agent need
not exchange or register the transfer of any Security or
portion of a Security selected for redemption. Also, it need
not exchange or register the transfer of any Securities for a
period of 15 days before a selection of Securities to be
redeemed.
11. PERSONS DEEMED OWNERS.
The registered holder of a Security may be treated as its
owner for all purposes.
12. AMENDMENTS AND WAIVERS.
Subject to certain exceptions, the Indenture or the Securities
may be amended with the consent of the holders of a majority
in principal amount of the securities of all series affected
by the amendment./11/ Subject to certain exceptions, a default
on a series may be waived with the consent of the holders of a
majority in principal amount of the series.
Without the consent of any Securityholder, the Indenture or
the Securities may be amended, among other things, to cure any
ambiguity, omission, defect or inconsistency; to provide for
assumption of Company obligations to Securityholders; or to
make any change that does not materially adversely affect the
rights of any Securityholder.
13. RESTRICTIVE COVENANTS./12/
The Securities are unsecured general obligations of the
Company limited to $ principal amount. The Indenture does
not limit other unsecured debt.
14. SUCCESSORS.
When a successor assumes all the obligations of the Company
under the Securities and the Indenture, the Company will be
released from those obligations.
A-5
<PAGE>
15. DEFEASANCE PRIOR TO REDEMPTION OR MATURITY./13/
Subject to certain conditions, the Company at any time may
terminate some or all of its obligations under the Securities
and the Indenture if the Company deposits with the Trustee
money or U.S. Government Obligations for the payment of
principal and interest on the Securities to redemption or
maturity. U.S. Government Obligations are securities backed by
the full faith and credit of the United States of America or
certificates representing an ownership interest in such
Obligations.
16. DEFAULTS AND REMEDIES.
An Event of Default/14/ includes: default for 60 days in
payment of interest on the Securities; default in payment of
principal on the Securities; default in payment or
satisfaction of any sinking fund obligation; default by the
Company for a specified period after notice to it in the
performance of any of its other agreements applicable to the
Securities; certain events of bankruptcy or insolvency; and
any other Event of Default provided for in the series. If an
Event of Default occurs and is continuing, the Trustee or the
holders of at least 25% in principal amount of the Securities
may declare the principal/15/ of all the Securities to be due
and payable immediately.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee
may require indemnity satisfactory to it before it enforces
the Indenture or the Securities. Subject to certain
limitations, holders of a majority in principal amount of the
Securities may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Securityholders notice
of any continuing default (except a default in payment of
principal or interest) if it determines that withholding
notice is in their interests. The Company must furnish an
annual compliance certificate to the Trustee.
17. TRUSTEE DEALINGS WITH COMPANY.
The First National Bank of Chicago, the Trustee under the
Indenture, in its individual or any other capacity, may make
loans to, accept deposits from, and perform services for the
Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not Trustee.
18. NO RECOURSE AGAINST OTHERS.
A director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of
the Company under the Securities or
A-6
<PAGE>
the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each
Securityholder by accepting a Security waives and releases all
such liability. The waiver and release are part of the
consideration for the issue of the Securities.
19. AUTHENTICATION.
This Security shall not be valid until authenticated by a
manual signature of the Registrar.
20. ABBREVIATIONS.
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as: TEN COM (=tenants in
common), TEN ENT (=tenants by the entirety), JT TEN (=joint
tenants with right of survivorship and not as tenants in
common), CUST (=custodian), U/G/M/A (=Uniform Gifts to Minors
Act) and U/T/M/A (=Uniform Transfers to Minors Act).
A-7
<PAGE>
EXHIBIT B
A Form of Bearer Security
No. [$]
WISCONSIN ENERGY CORPORATION
[Title of Security]
WISCONSIN ENERGY CORPORATION
promises to pay to
bearer
the principal sum of Dollars on ,
Interest Payment Dates:
Record Dates:
Dated:
THE FIRST NATIONAL BANK OF CHICAGO
Transfer Agent and Paying Agent
WISCONSIN ENERGY CORPORATION
By: ____________________________
[Title of Authorized Officer]
By: ____________________________
[Title of Authorized Officer]
(SEAL)
Authenticated:
THE FIRST NATIONAL BANK OF CHICAGO
Registrar
By: _________________________
Authorized Signature
B-1
<PAGE>
WISCONSIN ENERGY CORPORATION
[Title of Security]
[Explanatory Notes follow Exhibit B]
1. INTEREST./1/
WISCONSIN ENERGY CORPORATION ("Company"), a Wisconsin
corporation, promises to pay to bearer interest on the
principal amount of this Security at the rate per annum shown
above. The Company will pay interest on and of each year
commencing , . Interest on the Securities will accrue from
the most recent date to which interest has been paid or, if no
interest has been paid, from , . Interest will be computed
on the basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT./2/
Holders must surrender Securities and any coupons to a Paying
Agent to collect principal and interest payments. The Company
will pay principal and interest in money of the United States
that at the time of payment is legal tender for payment of
public and private debts. The Company may pay principal and
interest by check payable in such money.
3. SECURITIES AGENTS./2A/
Initially, The First National Bank of Chicago, Attention:
Corporate Trust Division, will act as Transfer Agent, Paying
Agent and Registrar. The Company may change any Paying Agent
or Transfer Agent without notice or provide for more than one
such agent. The Company or any Affiliate may act in any such
capacity. Subject to certain conditions, the Company may
change the Trustee.
4. INDENTURE.
The Company issued the securities of this series
("Securities") under an Indenture dated as of [ ], 1999
("Indenture") between the Company and The First National Bank
of Chicago (the "Trustee"). The terms of the Securities
include those stated in the Indenture and the Securities
Resolution and those made part of the Indenture by the Trust
Indenture Act of 1939 (15 U.S. Code (S)(S) 77aaa-77bbbb).
Securityholders are referred to the Indenture, the Securities
Resolution and the Act for a statement of such terms.
B-2
<PAGE>
5. OPTIONAL REDEMPTION./3/
On or after , the Company may redeem all the Securities at
any time or some of them from time to time at the following
redemption prices (expressed in percentages of principal
amount), plus accrued interest to the redemption date.
If redeemed during the 12-month period beginning,
Year Percentage Year Percentage
---- ---------- ---- ----------
and thereafter 100%.
6. MANDATORY REDEMPTION./4/
The Company will redeem $ principal amount of
Securities on and on each thereafter through
at a redemption price of 100% of principal amount,
plus accrued interest to the redemption date./5/ The Company
may reduce the principal amount of Securities to be redeemed
pursuant to this paragraph by subtracting 100% of the
principal amount (excluding premium) of any Securities (i)
that the Company has acquired or that the Company has redeemed
other than pursuant to this paragraph and (ii) that the
Company has delivered to the Registrar for cancellation. The
Company may so subtract the same Security only once.
7. ADDITIONAL OPTIONAL REDEMPTION./6/
In addition to redemptions pursuant to the above paragraph(s),
the Company may redeem not more than $ principal amount
of Securities on and on each thereafter through
at a redemption price of 100% of principal amount, plus
accrued interest to the redemption date.
8. NOTICE OF REDEMPTION./7/
Notice of redemption will be published once in an Authorized
Newspaper in the City of New York and if the Securities are
listed on any stock exchange located outside the United States
and such stock exchange so requires, in any other required
city outside the United States at least 30 but not more than
60 days before the redemption date. Notice of redemption also
will be mailed to holders who have filed their names and
addresses with the Transfer Agent
B-3
<PAGE>
within the two preceding years. A holder of Securities may
miss important notices if he fails to maintain his name and
address with the Transfer Agent.
A notice of redemption may provide that it is subject to the
occurrence of any event before the date fixed for such
redemption as described in such notice ("Conditional
Redemption") and such notice of Conditional Redemption shall
be of no effect unless all such conditions to the redemption
have occurred before such date or have been waived by the
Company.
9. CONVERSION./8/
A Holder of a Security may convert it into Common Stock of the
Company or cash, or a combination thereof, at the Company's
option, at any time before the close of business on
___________, or, if the Security is called for redemption, the
Holder may convert it at any time before the close of business
on the redemption date. The initial Conversion Rate is
____________ (or an equivalent amount in cash) per $1,000
principal amount of the Securities, subject to adjustment as
provided in Article 9 of the Indenture./9/ The Company will
deliver a check in lieu of any fractional share. On conversion
no payment or adjustment for interest accrued on the
Securities will be made nor for dividends on the Common Stock
issued on conversion. If any Security is converted between the
record date for the payment of interest and the next
succeeding interest payment date, such Security must be
accompanied by funds equal to the interest payable on such
succeeding interest payment date on the principal amount so
converted (unless such Security shall have been called for
redemption, in which case no such payment shall be required).
A Security converted on an interest payment date need not be
accompanied by any payment, and the interest on the principal
amount of the Security being converted will be paid on such
interest payment date to the registered holder of such
Security on the immediately preceding record date.
To convert a Security a Holder must (1) complete and sign the
conversion notice on the back of the Security, (2) surrender
the Security to a Conversion Agent, (3) furnish appropriate
endorsements and transfer documents if required by the
Registrar or Conversion Agent and (4) pay any transfer or
similar tax if required. A Holder may convert a portion of a
Security if the portion is $1,000 or an integral multiple of
$1,000.
10. DENOMINATIONS, TRANSFER, EXCHANGE.
The Securities are in bearer form with coupons in
denominations of $5,000/10/ and whole multiples of $5,000. The
Securities may be transferred by delivery
B-4
<PAGE>
and exchanged as provided in the Indenture. Upon an exchange,
the Transfer Agent may require a holder, among other things,
to furnish appropriate documents and to pay any taxes and fees
required by law or the Indenture. The Transfer Agent need not
exchange any Security or portion of a Security selected for
redemption. Also, it need not exchange any Securities for a
period of 15 days before a selection of Securities to be
redeemed.
11. PERSONS DEEMED OWNERS.
The holder of a Security or coupon may be treated as its owner
for all purposes.
12. AMENDMENTS AND WAIVERS.
Subject to certain exceptions, the Indenture or the Securities
may be amended with the consent of the holders of a majority
in principal amount of the securities of all series affected
by the amendment./11/ Subject to certain exceptions, a default
on a series may be waived with the consent of the holders of a
majority in principal amount of the series.
Without the consent of any Securityholder, the Indenture or
the Securities may be amended, among other things, to cure any
ambiguity, omission, defect or inconsistency; to provide for
assumption of Company obligations to Securityholders; or to
make any change that does not materially adversely affect the
rights of any Securityholder.
13. RESTRICTIVE COVENANTS./12/
The Securities are unsecured general obligations of the
Company limited to $ principal amount. The Indenture
does not limit other unsecured debt.
14. SUCCESSORS.
When a successor assumes all the obligations of the Company
under the Securities, any coupons and the Indenture, the
Company will be released from those obligations.
15. DEFEASANCE PRIOR TO REDEMPTION OR MATURITY./13/
Subject to certain conditions, the Company at any time may
terminate some or all of its obligations under the Securities,
any coupons and the Indenture if the Company deposits with the
Trustee money or U.S. Government Obligations for the payment
of principal and interest on the Securities to redemption or
B-5
<PAGE>
maturity. U.S. Government Obligations are securities backed by
the full faith and credit of the United States of America or
certificates representing an ownership interest in such
Obligations.
16. DEFAULTS AND REMEDIES.
An Event of Default/14/ includes: default for 60 days in
payment of interest on the Securities; default in payment of
principal on the Securities; default in payment or
satisfaction of any sinking fund obligation; default by the
Company for a specified period after notice to it in the
performance of any of its other agreements applicable to the
Securities; certain events of bankruptcy or insolvency; and
any other Event of Default provided for in the series. If an
Event of Default occurs and is continuing, the Trustee or the
holders of at least 25% in principal amount of the Securities
may declare the principal/15/ of all the Securities to be due
and payable immediately.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee
may require indemnity satisfactory to it before it enforces
the Indenture or the Securities. Subject to certain
limitations, holders of a majority in principal amount of the
Securities may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Securityholders notice
of any continuing default (except a default in payment of
principal or interest) if it determines that withholding
notice is in their interests. The Company must furnish annual
compliance certificates to the Trustee.
17. TRUSTEE DEALINGS WITH COMPANY.
The First National Bank of Chicago, the Trustee under the
Indenture, in its individual or any other capacity, may make
loans to, accept deposits from, and perform services for the
Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not Trustee.
18. NO RECOURSE AGAINST OTHERS.
A director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of
the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations
or their creation. Each Securityholder by accepting a Security
waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Securities.
B-6
<PAGE>
19. AUTHENTICATION.
This Security shall not be valid until authenticated by a
manual signature of the Registrar.
20. ABBREVIATIONS.
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as: TEN COM (=tenants in
common), TEN ENT (=tenants by the entirety), JT TEN (=joint
tenants with right of survivorship and not as tenants in
common), CUST (=custodian), U/G/M/A (=Uniform Gifts to Minors
Act) and U/T/M/A (=Uniform Transfers to Minors Act).
B-7
<PAGE>
$______________
[$]____________
Due____________
WISCONSIN ENERGY CORPORATION
[Title of Security]
Unless the Security attached to this coupon has been called
for redemption, Wisconsin Energy Corporation ("Company") will pay to bearer,
upon surrender, the amount shown hereon when due. This coupon may be surrendered
for payment to any Paying Agent listed on the back of this coupon unless the
Company has replaced such Agent. Payment may be made by check. This coupon
represents months' interest.
WISCONSIN ENERGY CORPORATION
By___________________________
[REVERSE OF COUPON]
PAYING AGENTS
B-8
<PAGE>
NOTES TO EXHIBITS A AND B
1 If the Security is not to bear interest at a fixed rate per annum,
insert a description of the manner in which the rate of interest is to
be determined. If the Security is not to bear interest prior to
maturity, so state.
2 If the method or currency of payment is different, insert a statement
thereof.
2A As is done in Section 2.03 of the Indenture, the Trustee must be
appointed Registrar under Section 182.23, Wis. Stats., in order for
Officers' signatures on Securities and the corporate seal to be
facsimiles.
3 If applicable. If the Security is to be subject to a nonrefunding
restriction, insert a brief summary thereof. If the redemption is to be
subject to a condition, insert a brief summary thereof.
4 Such provisions as are applicable, if any.
5 If the Security is a Discounted Debt Security, insert amount to be
redeemed or method of calculating such amount.
6 If applicable. Also insert, if applicable, provisions for repayment of
Securities at the option of the Securityholder.
7 If applicable.
8 If applicable. If convertible into securities other than Common Stock,
insert appropriate summary.
9 If additional or different adjustment provisions apply so specify.
10 If applicable. Insert additional or different denominations and terms
as appropriate.
11 If different terms apply, insert a brief summary thereof.
12 If applicable. If additional or different covenants apply, insert a
brief summary thereof.
13 If applicable. If different defeasance terms apply, insert a brief
summary thereof.
14 If additional or different Events of Default apply, insert a brief
summary thereof.
15 If the Security is a Discounted Debt Security, set forth the amount due
and payable upon an Event of Default.
Note: U.S. tax law may require certain legends on Discounted Debt and Bearer
Securities.
<PAGE>
EXHIBIT C
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
-------------------------------------------------------
-------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ____________________________ agent to transfer this
Security on the books of the Company. The agent may substitute another to act
for him.
Date: _______________ Your Signature: __________________________
(Sign exactly as your name(s) appear(s) on
the other side of this Security)
Signature(s) guaranteed by:___________________________________
(All signatures must be guaranteed by an
"eligible guarantor institution" as defined by
Rule 17Ad-15 of the Securities Exchange Act of
1934, as amended)
C-1
<PAGE>
EXHIBIT D
CONVERSION NOTICE
To convert this Security, check the box:
_____________
_____________
To convert only part of this Security, state the
amount (must be in integral multiples of $1,000);
$________________________________________
If you want the securities delivered upon conver-
sion made out in another person's name, fill in
the form below:
(Insert other person's Social Security or Tax I.D. Number)
______________________________
______________________________
______________________________
______________________________
(Print or type other person's name, address and
zip code
Date:____________ Signature(s):______________________
___________________________
(Sign exactly as your
name(s) appear(s) on the
other side of this
Security)
Signature(s) guaranteed by:_______________________________________
(All signatures must be guaranteed by an
"eligible guarantor institution" as defined by
Rule 17Ad-15 of the Securities Exchange Act of
1934, as amended)
D-1
<PAGE>
EXHIBIT 4.47
================================================================================
SECURITIES RESOLUTION NO. 1
OF
WISCONSIN ENERGY CORPORATION
Dated as of March 16, 1999
pursuant to Section 2.01 of the
INDENTURE
between
WISCONSIN ENERGY CORPORATION,
as Issuer
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
Dated as of March 15, 1999
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms............................... 2
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount.................. 4
SECTION 2.2. Maturity.......................................... 4
SECTION 2.3. Form and Payment.................................. 4
SECTION 2.4. Global Debenture.................................. 5
SECTION 2.5. Interest.......................................... 6
SECTION 2.6. Redemption........................................ 7
SECTION 2.7. No Sinking Fund................................... 7
SECTION 2.8. Depository........................................ 8
SECTION 2.9. Appointment of Agents............................. 8
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. Special Event Redemption.......................... 8
SECTION 3.2. Optional Redemption by Company.................... 9
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period.............. 10
SECTION 4.2. Notice of Extension 11
SECTION 4.3. Limitation of Transactions........................ 11
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses............................... 12
SECTION 5.2. Payment Upon Resignation or Removal............... 13
<PAGE>
Exhibit 4.47
ARTICLE VI
SUBORDINATION Page
----
SECTION 6.1. Subordination............................................ 13
SECTION 6.2. Default on Senior Indebtedness........................... 14
SECTION 6.3. Liquidation; Dissolution; Bankruptcy..................... 14
SECTION 6.4. Subrogation.............................................. 16
SECTION 6.5. Trustee to Effectuate Subordination...................... 17
SECTION 6.6. Notice by the Company.................................... 17
SECTION 6.7. Rights of the Trustee; Holders of Senior Indebtedness.... 18
SECTION 6.8. Subordination May Not Be Impaired........................ 18
ARTICLE VII
COVENANT TO LIST ON EXCHANGE
SECTION 7.1. Listing on an Exchange................................... 19
ARTICLE VIII
FORM OF DEBENTURE
SECTION 8.1. Form of Debenture........................................ 19
ARTICLE IX
EFFECTIVENESS OF THIS SECURITIES RESOLUTION
SECTION 9.1. Effectiveness............................................ 20
ARTICLE X
ORIGINAL ISSUE OF DEBENTURES
SECTION 10.1. Original Issue of Debentures............................. 20
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Ratification of Indenture................................ 20
SECTION 11.2. Governing Law............................................ 20
SECTION 11.3. Separability............................................. 21
EXHIBIT A - Form of Debenture............................................. A-1
-ii-
<PAGE>
This SECURITIES RESOLUTION NO. 1 (the "Securities Resolution") sets
---------------------
forth actions taken by the Board of Directors or an authorized committee of the
Board of Directors (the "Board") of WISCONSIN ENERGY CORPORATION (the
-----
"Company"), or by an officer or committee of officers on March 16, 1999,
-------
pursuant to the authorized delegation of the Board and in accordance with
Section 2.01 of the Indenture, dated as of March 15, 1999 (the "Indenture")
---------
between the Company and The First National Bank of Chicago, as Trustee (the
"Trustee").
-------
WHEREAS, the Company executed and delivered the Indenture to the
Trustee to provide for the future issuance of the Company's unsecured
debentures, notes or other evidence of indebtedness (the "Securities"), to be
----------
issued from time to time in one or more series as might be determined by the
Company under the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company desires
to provide for the establishment of a new series of its Securities to be known
as its 6.85% Junior Subordinated Debentures due March 31, 2039 (the
"Debentures"), the form and substance of such Debentures and the terms,
----------
provisions and conditions thereof to be set forth as provided in the Indenture
and this Securities Resolution;
WHEREAS, WEC Capital Trust I, a Delaware statutory business trust (the
"Trust"), intends to offer to the public $200,000,000 aggregate liquidation
-----
amount of its 6.85% Trust Preferred Securities (the "Preferred Securities"),
--------------------
representing preferred undivided beneficial interests in the assets of the
Trust, and proposes to invest the proceeds from such offering, together with the
proceeds of the issuance and sale by the Trust to the Company of $6,200,000
aggregate liquidation amount of its 6.85% Common Securities, in $206,200,000
aggregate principal amount of the Debentures; and
WHEREAS, the Company has requested that the Trustee make the
Debentures, when executed by the Company and authenticated and delivered by the
Trustee in accordance with this Securities Resolution, the valid obligations of
the Company.
NOW THEREFORE, RESOLVED, that a new series of Securities is authorized
as follows:
<PAGE>
-2-
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms
-------------------
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used in
this Securities Resolution;
(b) a term defined anywhere in this Securities Resolution has the
same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) headings are for convenience of reference only and do not affect
interpretation;
(e) the following terms have the meanings given to them in the Trust
Agreement: (i) Administrative Trustee; (ii) Business Day; (iii) Clearing
Agency; (iv) Delaware Trustee; (v) Guarantee; (vi) Preferred Securities
Certificate; (vii) Property Trustee; (viii) Trust Securities; and (ix)
Underwriting Agreement; and
(f) the following terms have the meanings given to them in this
Section 1.1(f):
"Additional Interest" shall have the meaning set forth in Section
-------------------
2.5(c).
"Change in 1940 Act Law" shall have the meaning set forth in Section
----------------------
3.1.
"Compounded Interest" shall have the meaning set forth in Section 4.1.
-------------------
"Coupon Rate" shall have the meaning set forth in Section 2.5(a).
-----------
"Deferred Interest" shall have the meaning set forth in Section 4.1.
-----------------
"Dissolution Event" means that the Trust is to be dissolved in
-----------------
accordance with the Trust Agreement, and the Debentures held by the
Property Trustee are to be distributed to the holders of the Trust
Securities issued by the Trust pro rata in accordance with the Trust
Agreement.
<PAGE>
-3-
"Extended Interest Payment Period" shall have the meaning set forth in
--------------------------------
Section 4.1.
"Global Debenture" shall have the meaning set forth in Section 2.4(a).
----------------
"Interest Payment Date" shall have the meaning set forth in Section
---------------------
2.5(a).
"Investment Company Event" shall have the meaning set forth in Section
------------------------
3.1.
"Maturity Date" means the date on which the Debentures mature and on
-------------
which the principal shall be due and payable together with all accrued and
unpaid interest thereon including Compounded Interest and Additional
Interest, if any.
"Ministerial Action" shall have the meaning set forth in Section 3.1.
------------------
"90 Day Period" shall have the meaning set forth in Section 3.1.
-------------
"Non Book-Entry Preferred Securities" shall have the meaning set forth
-----------------------------------
in Section 2.4(a).
"Optional Redemption Price" shall have the meaning set forth in
-------------------------
Section 3.2(a).
"Redemption Price" shall have the meaning set forth in Section 3.1.
----------------
"Senior Indebtedness" means: (i) any payment in respect of (A)
-------------------
indebtedness of the Company for money borrowed and (B) indebtedness evidenced by
securities, debentures, bonds, notes or other similar instruments issued by the
Company; (ii) all capital lease obligations of the Company; (iii) all
obligations of the Company issued or assumed as the deferred purchase price of
property, all conditional sale obligations of the Company and all obligations of
such obligor under any title retention agreement (but excluding trade accounts
payable arising in the ordinary course of business); (iv) all obligations of the
Company for reimbursement on any letter of credit, banker's acceptance, security
purchase facility or similar credit transaction; (v) all obligations of the type
referred to in clauses (i) through (iv) of other Persons for the payment of
which the Company is responsible or liable as obligor, guarantor or otherwise;
and (vi) all obligations of the type referred to in clauses (i) through (v) of
other Persons secured by any lien on any property or asset of the Company
(whether or not such obligation is assumed by the Company), except for any such
indebtedness that is by its terms subordinated to or pari passu with the
Debentures, as the case may be. For greater certainty, "Senior Indebtedness"
includes all indebtedness for money borrowed between or among the Company and
its Affiliates, except for such indebtedness that
<PAGE>
-4-
is by its terms subordinated to or pari passu with the Debentures, as the case
may be. Such Senior Indebtedness shall continue to be Senior Indebtedness and be
entitled to the benefits of Article VI hereof irrespective of any amendment,
modification or waiver of any term of such Senior Indebtedness.
"Special Event" shall have the meaning set forth in Section 3.1.
-------------
"Tax Event" shall have the meaning set forth in Section 3.1.
---------
"Trust Agreement" means the Amended and Restated Trust Agreement of
---------------
WEC Capital Trust I, a Delaware statutory business trust, dated as of March
25, 1999.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount.
--------------------------------
There is hereby authorized a series of Securities designated the
"6.85% Junior Subordinated Debentures due March 31, 2039 ", limited in aggregate
principal amount to $206,200,000 million, to be substantially in the form set
forth in Article VIII hereof, subject to changes in the form thereof made by the
Company and acceptable to the Trustee.
SECTION 2.2. Maturity.
--------
The Maturity Date of the Debentures is March 31, 2039.
SECTION 2.3. Form and Payment.
----------------
Except as provided in Section 2.4, the Debentures shall be issued in
fully registered certificated form without interest coupons in denominations of
$25 or integral multiples of $25. The Place of Payment for the Debentures issued
in certificated form where the transfer of such Debentures will be registrable
and where such Debentures will be exchangeable for Debentures bearing identical
terms and provisions shall be the Corporate Trust Office of the Trustee;
provided, however, that payment of interest may be made at the option of the
Company by check mailed to the Holder at such address as shall appear in the
Security Register. Notwithstanding the foregoing, so long as the Holder of any
Debentures is the Property Trustee, the payment of the principal of and interest
(including Compounded Interest and Additional Interest, if any) on such
Debentures held by the Prop-
<PAGE>
-5-
erty Trustee will be made at such place and to such account as may be designated
to the Company in writing by the Property Trustee.
SECTION 2.4. Global Debenture.
----------------
(a) In connection with a Dissolution Event,
(i) the Debentures in certificated form may be presented to the
Trustee by the Property Trustee in exchange for a global Debenture in an
aggregate principal amount equal to the aggregate principal amount of all
outstanding Debentures (a "Global Debenture"), to be registered in the name
----------------
of the Depository, or its nominee, and delivered by the Trustee to the
Depository for crediting to the accounts of its participants pursuant to
the instructions of the Administrative Trustee. The Company upon any such
presentation shall execute a Global Debenture in such aggregate principal
amount and deliver the same to the Trustee for authentication and delivery
in accordance with the Indenture and this Securities Resolution. Payments
on the Debentures issued as a Global Debenture will be made to the
Depository; and
(ii) if any Preferred Securities are held in non book-entry
certificated form, the Debentures in certificated form may be presented to
the Trustee by the Property Trustee and any Preferred Security Certificate
which represents Preferred Securities other than Preferred Securities held
by the Clearing Agency or its nominee ("Non Book-Entry Preferred
------------------------
Securities") will be deemed to represent beneficial interests in Debentures
----------
presented to the Trustee by the Property Trustee having an aggregate
principal amount equal to the aggregate liquidation amount of the Non Book-
Entry Preferred Securities until such Preferred Security Certificates are
presented to the Security Registrar for transfer or reissuance at which
time such Preferred Security Certificates will be canceled and a Debenture,
registered in the name of the holder of the Preferred Security Certificate
or the transferee of the holder of such Preferred Security Certificate, as
the case may be, with an aggregate principal amount equal to the aggregate
liquidation amount of the Preferred Security Certificate canceled, will be
executed by the Company and delivered to the Trustee for authentication and
delivery in accordance with the Indenture and this Securities Resolution.
On issue of such Debentures, Debentures with an equivalent aggregate
principal amount that were presented by the Property Trustee to the Trustee
will be deemed to have been canceled.
(b) Unless and until it is exchanged for the Debentures in registered
form, a Global Debenture may be transferred, in whole but not in part, only to
another nominee of the Depository, or to a successor Depository selected or
approved by the Company or to a nominee of such successor Depository.
<PAGE>
-6-
(c) If at any time the Depository notifies the Company that it is
unwilling or unable to continue as Depository or if at any time the Depository
for such series shall no longer be registered or in good standing under the
Securities Exchange Act of 1934, as amended, or other applicable statute or
regulation, and a successor Depository for such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such condition, as the case may be, the Company will execute, and, subject to
Article 3 of the Indenture, the Trustee, upon written notice from the Company,
will authenticate and deliver the Debentures in definitive registered form
without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Debenture in exchange for
such Global Debenture. In addition, the Company may at any time determine that
the Debentures shall no longer be represented by the Global Debenture. In such
event the Company will execute, and subject to Section 2.02 of the Indenture,
the Trustee, upon receipt of an Officers' Certificate evidencing such
determination by the Company, will authenticate and deliver the Debentures in
definitive registered form without coupons, in authorized denominations, and in
an aggregate principal amount equal to the principal amount of the Global
Debenture in exchange for such Global Debenture. Upon the exchange of the Global
Debenture for such Debentures in definitive registered form without coupons, in
authorized denominations, the Global Debenture shall be cancelled by the
Trustee. Such Debentures in definitive registered form issued in exchange for
the Global Debenture shall be registered in such names and in such authorized
denominations as the Depository, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Debentures to the Depository for delivery to the Persons in
whose names such Debentures are so registered.
SECTION 2.5. Interest.
--------
(a) Each Debenture will bear interest at the rate of 6.85% per annum
(the "Coupon Rate") from the original date of issuance until the principal
-----------
thereof becomes due and payable, and on any overdue principal and (to the extent
that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the Coupon Rate, compounded quarterly,
payable (subject to the provisions of Article IV) quarterly in arrears on March
31, June 30, September 30 and December 31 of each year (each, an "Interest
--------
Payment Date"), commencing on June 30, 1999, to the Person in whose name such
- ------------
Debenture or any predecessor Debenture is registered at the close of business on
the regular record date for such interest installment, which, in respect of (i)
Debentures of which the Property Trustee is the Holder and the Preferred
Securities are in book-entry only form or (ii) a Global Debenture, shall be the
close of business on the Business Day next preceding that Interest Payment Date.
Notwithstanding the foregoing sentence, if (i) the Debentures are held by the
Property Trustee and the Preferred Securities are no longer
<PAGE>
-7-
in book-entry only form or (ii) the Debentures are not represented by a Global
Debenture, the Company may select a regular record date for such interest
installment which shall be any date at least one Business Day but less than
sixty Business Days before an Interest Payment Date.
(b) The amount of interest payable for any period will be computed on
the basis of a 360-day year of twelve 30-day months. Except as provided in the
following sentence, the amount of interest payable for any period shorter than a
full quarterly period for which interest is computed, will be computed on the
basis of the actual number of days elapsed in such a 90-day period. In the event
that any date on which interest is payable on the Debentures is not a Business
Day, then payment of interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date.
(c) If, at any time while the Property Trustee is the Holder of any
Debentures, the Trust or the Property Trustee is required to pay any taxes,
duties, assessments or governmental charges of whatever nature (other than
withholding taxes) imposed by the United States, or any other taxing authority,
then, in any case, the Company will pay as additional interest ("Additional
----------
Interest") on the Debentures held by the Property Trustee, such additional
- --------
amounts as shall be required so that the net amounts received and retained by
the Trust and the Property Trustee after paying such taxes, duties, assessments
or other governmental charges will be equal to the amounts the Trust and the
Property Trustee would have received had no such taxes, duties, assessments or
other government charges been imposed.
SECTION 2.6. Redemption.
----------
The Debentures are not subject to redemption at the option of the
Holder and are subject to redemption solely at the option of the Company or
otherwise as provided in Article III hereof.
SECTION 2.7. No Sinking Fund.
---------------
The Debentures shall not be entitled to the benefit of any sinking
fund or analogous provision.
<PAGE>
-8-
SECTION 2.8. Depository.
----------
The Depository Trust Company (or its nominee) shall act as the initial
Depository (the "Depository") for any Global Debenture which may be issued
pursuant to this Securities Resolution.
SECTION 2.9. Appointment of Agents.
---------------------
The Company hereby appoints, or confirms the appointment of, The First
National Bank of Chicago as the initial Trustee, Securities Registrar and Paying
Agent with respect to the Debentures, subject to the provisions of the Indenture
with respect to resignation, removal and succession, and subject, further, to
the right of the Company to appoint additional agents (including Paying Agents).
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. Special Event Redemption.
------------------------
If a Special Event (as defined below) has occurred and is continuing
then, notwithstanding Section 3.2(a) but subject to Section 3.2(b), the Company
shall have the right upon not less than 30 days nor more than 60 days notice to
the Holders of the Debentures to redeem the Debentures, in whole but not in
part, for cash within 90 days following the occurrence of such Special Event
(the "90 Day Period") at a redemption price equal to 100% of the principal
-------------
amount to be redeemed plus any accrued and unpaid interest thereon, including
Compounded Interest and Additional Interest, if any, to the date of such
redemption (the "Redemption Price"); provided, however, that in the case of an
----------------
occurrence of a Tax Event, if at the time there is available to the Company the
opportunity to eliminate, within the 90 Day Period, the Tax Event by taking some
ministerial action ("Ministerial Action"), such as filing a form or making an
------------------
election, or pursuing some other similar reasonable measure which has no adverse
effect on the Company, the Trust or the Holders of the Trust Securities issued
by the Trust, the Company shall pursue such Ministerial Action in lieu of
redemption, and, provided, further, that the Company shall have no right to
redeem the Debentures while the Trust is pursuing any Ministerial Action
pursuant to its obligations under the Trust Agreement. The Redemption Price
shall be paid prior to 12:00 noon, New York time, on the date of such redemption
or at such earlier time as the Company determines, provided that the Company
shall deposit with the Trustee an amount suf-
<PAGE>
-9-
ficient to pay the Redemption Price by 10:00 a.m., New York time, on the date
such Redemption Price is to be paid.
A "Special Event" shall mean either a Tax Event or an Investment
-------------
Company Event. "Tax Event" shall mean that the Company shall have received an
---------
opinion of counsel (which may be regular counsel to the Company or an Affiliate,
but not an employee thereof, which must be acceptable to the Property Trustee of
the Trust) experienced in such matters to the effect that, as a result of (a)
any amendment to, or change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein affecting taxation, or (b)
any official administrative written decision, pronouncement or action or
judicial decision interpreting or applying such laws or regulations by any
court, governmental agency or regulatory authority, in each case which amendment
or change is enacted, promulgated, issued or announced or which interpretation
or application is issued or announced on or after the date of original issuance
of Preferred Securities, there is more than an insubstantial risk that (i) the
Trust is, or will be within 90 days of the date of the opinion of counsel,
subject to United States Federal income tax with respect to interest received on
the Debentures, (ii) interest payable by the Company to the Trust on the
Debentures is not, or will not be within 90 days of the date of the opinion of
counsel, deductible for United States Federal income tax purposes, or (iii) the
Trust is, or will be within 90 days of the date of the opinion of counsel,
subject to more than a de minimis amount of other taxes, duties, assessments or
other governmental charges. "Investment Company Event" shall mean the occurrence
------------------------
of a change in law or regulation or a change in interpretation or application of
law or regulation by any legislative body, court, governmental agency or
regulatory authority (a "Change in 1940 Act Law") to the effect that the Trust
----------------------
is or will be considered an "Investment Company" that is required to be
registered under the Investment Company Act of 1940, as amended, which Change in
1940 Act Law becomes effective on or after the date of original issuance of the
Preferred Securities.
SECTION 3.2. Optional Redemption by Company
------------------------------
(a) Subject to the provisions of Section 3.2(b) and to the provisions
of Article 3 of the Indenture, except as otherwise may be specified in this
Securities Resolution, the Company shall have the right to redeem the
Debentures, in whole or in part, from time to time, on or after March 25, 2004,
upon not less than 30 days nor more than 60 days notice to the Holder of the
Debentures at a redemption price equal to 100% of the principal amount to be
redeemed plus any accrued and unpaid interest thereon, including Compounded
Interest and Additional Interest, if any, to the date of such redemption (the
"Optional Redemption Price").
-------------------------
<PAGE>
-10-
If the Debentures are only partially redeemed pursuant to this Section
3.2, the Debentures will be redeemed pro rata or by lot or by any other method
utilized by the Trustee; provided, that if at the time of redemption the
Debentures are registered as a Global Debenture, the Depository shall determine,
in accordance with its procedures, the principal amount of such Debentures held
by each Debenture Holder to be redeemed. The Optional Redemption Price shall be
paid prior to 12:00 noon, New York time, on the date of such redemption or at
such earlier time as the Company determines, provided that the Company shall
deposit with the Trustee an amount sufficient to pay the Optional Redemption
Price by 10:00 a.m., New York time, on the date such Optional Redemption Price
is to be paid.
(b) If a partial redemption of the Debentures would result in the
delisting of the Preferred Securities issued by the Trust from any national
securities exchange or other organization on which the Preferred Securities are
then listed, the Company shall not be permitted to effect such partial
redemption and may only redeem the Debentures in whole.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period.
------------------------------------
The Company shall have the right, at any time and from time to time
during the term of the Debentures, so long as no Event of Default with respect
to the Debentures has occurred and is continuing, to defer payments of interest
by extending the interest payment period of such Debentures for a period not
exceeding 20 consecutive quarters (the "Extended Interest Payment Period"),
--------------------------------
during which Extended Interest Payment Period no interest shall be due and
payable; provided that no Extended Interest Payment Period may extend beyond the
Maturity Date. To the extent permitted by applicable law, interest, the payment
of which has been deferred because of the extension of the interest payment
period pursuant to this Section 4.1, will bear interest thereon at the Coupon
Rate compounded quarterly for each quarter of the Extended Interest Payment
Period ("Compounded Interest"). At the end of the Extended Interest Payment
-------------------
Period, the Company shall pay all interest accrued and unpaid on the Debentures,
including any Additional Interest and Compounded Interest (together, "Deferred
--------
Interest") that shall be payable to the Holders of the Debentures in whose names
- --------
the Debentures are registered in the Security Register on the first record date
after the end of the Extended Interest Payment Period. Before the termination of
any Extended Interest Payment Period, the Company may further extend such
period, provided that such period together with all such further extensions
thereof shall not
<PAGE>
-11-
exceed 20 consecutive quarters or extend beyond the Maturity Date. Upon the
termination of any Extended Interest Payment Period and upon the payment of all
Deferred Interest then due, the Company may commence a new Extended Interest
Payment Period, subject to the foregoing requirements. No interest shall be due
and payable during an Extended Interest Payment Period, except (i) at the end
thereof and (ii) upon a redemption of the Debentures during an Extended Interest
Payment Period, but the Company may prepay at any time all or any portion of the
interest accrued during an Extended Interest Payment Period.
SECTION 4.2. Notice of Extension.
-------------------
(a) If the Property Trustee is the only registered Holder of the
Debentures at the time the Company selects an Extended Interest Payment Period,
the Company shall give written notice to the Administrative Trustees, the
Property Trustee and the Trustee of its selection of such Extended Interest
Payment Period one Business Day before the earlier of (i) the next succeeding
date on which Distributions on the Preferred Securities issued by the Trust are
payable, or (ii) the date the Trust is required to give notice of the record
date, or the date such Distributions are payable, to the New York Stock Exchange
or other applicable self-regulatory organization or to holders of the Preferred
Securities issued by the Trust, but in any event at least one Business Day
before such record date.
(b) If the Property Trustee is not the only Holder of the Debentures
at the time the Company selects an Extended Interest Payment Period, the Company
shall give the Holders of the Debentures and the Trustee written notice of its
selection of such Extended Interest Payment Period at least ten Business Days
before the earlier of (i) the next succeeding Interest Payment Date, or (ii) the
date the Company is required to give notice of the record or payment date of
such interest payment to the New York Stock Exchange or other applicable self-
regulatory organization or to Holders of the Debentures.
(c) The quarter in which any notice is given pursuant to paragraphs
(a) or (b) of this Section 4.2 shall be counted as one of the 20 quarters
permitted in the maximum Extended Interest Payment Period permitted under
Section 4.1.
SECTION 4.3. Limitation of Transactions.
--------------------------
If (i) the Company shall exercise its right to defer payment of
interest as provided in Section 4.1, (ii) there shall have occurred any Event of
Default, as defined in the Indenture, or (iii) the Company shall be in default
with respect to its payment obligations under the Guarantee, then (a) the
Company shall not declare or pay any dividend on, make any distributions with
respect to, or redeem, purchase, acquire or make a liquidation payment with
respect to, any of its capital stock (other than (i) as a result of a
reclassification of its capital stock or the exchange or conversion of one class
or series of its capital stock
<PAGE>
-12-
for another class or series of its capital stock, (ii) any payment of a dividend
in connection with the implementation of a shareholder rights plan, or the
issuance of stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto, (iii) purchases of its common
stock related to the issuance of such stock under any of the Company's benefit
plans for its directors, officers or employees, (iv) obligations under any
dividend reinvestment plan or stock purchase plan of the Company, (v) the
purchase of fractional interests in shares of its capital stock pursuant to the
conversion or exchange provisions of such capital stock or security being
converted or exchanged or (vi) dividends or distributions in its common stock)
or make any guarantee payment with respect thereto, (b) the Company shall not
make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities issued by the Company which rank pari
passu with or junior to the Debentures and (c) the Company shall not make any
guarantee payments with respect to any of the payment obligations referred to in
(b) above (other than pursuant to the Guarantee and any similar guarantee issued
by the Company on behalf of holders of preferred securities issued by an issuer
holding Securities issued under the Indenture).
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses.
-------------------
In connection with the offering, sale and issuance of the Debentures
to the Property Trustee and in connection with the sale of the Trust Securities
by the Trust, the Company, in its capacity as borrower with respect to the
Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Debentures, including commissions to the underwriters
payable pursuant to the Underwriting Agreement and compensation of the
Trustee under the Indenture in accordance with the provisions of Section
7.06 of the Indenture;
(b) pay all costs and expenses of the Trust (including, but not
limited to, costs and expenses relating to the organization of the Trust,
the offering, sale and issuance of the Trust Securities (including
commissions to the underwriters in connection therewith), the fees and
expenses of the Property Trustee and the Delaware Trustee, the costs and
expenses relating to the operation of the Trust, including without
limitation, costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and computing or
accounting
<PAGE>
-13-
equipment, paying agent(s), registrar(s), transfer agent(s), duplicating,
travel and telephone and other telecommunications expenses and costs and
expenses incurred in connection with the acquisition, financing, and
disposition of Trust assets);
(c) be primarily liable for any indemnification obligations arising
with respect to the Trust Agreement; and (d) pay any and all taxes (other
than United States withholding taxes attributable to the Trust or its
assets) and all liabilities, costs and expenses with respect to such taxes
of the Trust.
SECTION 5.2. Payment Upon Resignation or Removal
-----------------------------------
Upon termination of this Securities Resolution or the Indenture or the
removal or resignation of the Trustee pursuant to this Section 5.2, the Company
shall pay to the Trustee all amounts accrued to the date of such termination,
removal or resignation. Upon termination of the Trust Agreement or the removal
or resignation of the Delaware Trustee or the Property Trustee, as the case may
be, pursuant to Section 8.10 of the Trust Agreement, the Company shall pay to
the Delaware Trustee or the Property Trustee, as the case may be, all amounts
accrued to the date of such termination, removal or resignation.
ARTICLE VI
SUBORDINATION
SECTION 6.1. Subordination.
-------------
The Company resolves, and each holder of Debentures issued hereunder
by such holder's acceptance thereof covenants and agrees, that all Debentures
shall be issued subject to the provisions of this Article VI; and each holder of
a Debenture, whether upon original issue or upon transfer or assignment thereof,
accepts and agrees to be bound by such provisions.
The payment by the Company of the principal of, premium, if any, and
interest on all Debentures issued hereunder shall, to the extent and in the
manner hereinafter set forth, be subordinated and subject in right of payment to
the prior payment in full of all Senior Indebtedness, whether outstanding at the
date of this Securities Resolution or thereafter incurred.
This Article shall constitute a continuing offer to all Persons who,
in reliance upon such provisions, become holders of, or continue to hold, Senior
Indebtedness, and such provisions are made for the benefit of the holders of
Senior Indebtedness and such
<PAGE>
-14-
holders are made obligees hereunder and they and/or each of them may enforce
such provisions.
No provision of this Article VI shall prevent the occurrence of any
default or Event of Default with respect to the Debentures.
SECTION 6.2. Default on Senior Indebtedness.
------------------------------
In the event and during the continuation of any default by the Company
in the payment of principal, premium, interest or any other amount due on any
Senior Indebtedness, or in the event that the maturity of any Senior
Indebtedness has been accelerated because of a default, then, in either case, no
payment shall be made by the Company to the Holders of the Debentures with
respect to the principal (including redemption and sinking fund payments) of,
premium, if any, interest on, or any other amount owing in respect of, the
Debentures.
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee or any Holder of the Debentures when such payment is
prohibited by the preceding paragraph of this Section 6.2, such payment shall be
held in trust for the benefit of, and shall be paid over or delivered to, the
holders of Senior Indebtedness or their respective representatives, or to the
trustee or trustees under any indenture pursuant to which any of such Senior
Indebtedness may have been issued, as their respective interests may appear, but
only to the extent that the holders of the Senior Indebtedness (or their
representative or representatives or a trustee) notify the Trustee within 90
days of such payment of the amounts then due and owing on the Senior
Indebtedness and only the amounts specified in such notice to the Trustee shall
be paid to the holders of Senior Indebtedness.
SECTION 6.3. Liquidation; Dissolution; Bankruptcy.
------------------------------------
Upon any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution or winding-up or liquidation or reorganization of
the Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due upon all Senior Indebtedness
shall first be paid in full, or payment thereof provided for in money in
accordance with its terms, before any payment or distribution is made by the
Company to the Holders of the Debentures on account of the principal of,
premium, if any, interest on, or any other amount owing in respect of, the
Debentures; and upon any such dissolution or winding-up or liquidation or
reorganization, any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
which the Holders of the Debentures or the Trustee would be entitled to receive
from the Company, except for the provisions of this Article VI, shall be paid by
the
<PAGE>
-15-
Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or
other Person making such payment or distribution, or by the Holders of the
Debentures or by the Trustee under this Indenture if received by them or it,
directly to the holders of Senior Indebtedness (pro rata to such holders on the
basis of the respective amounts of Senior Indebtedness held by such holders, as
calculated by the Company) or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing such Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay such Senior Indebtedness in
full, in money or money's worth, after giving effect to any concurrent payment
or distribution to or for the holders of such Senior Indebtedness, before any
payment or distribution is made to the Holders of Debentures or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, prohibited by the foregoing, shall be received by the
Trustee or the Holders of the Debentures before all Senior Indebtedness is paid
in full, or provision is made for such payment in money in accordance with its
terms, such payment or distribution shall be held in trust for the benefit of
and shall be paid over or delivered to the holders of such Senior Indebtedness
or their representative or representatives, or to the trustee or trustees under
any indenture pursuant to which any instruments evidencing such Senior
Indebtedness may have been issued, as their respective interests may appear, as
calculated by the Company, for application to the payment of all Senior
Indebtedness remaining unpaid to the extent necessary to pay such Senior
Indebtedness in full in money in accordance with its terms, after giving effect
to any concurrent payment or distribution to or for the benefit of the holders
of such Senior Indebtedness.
For purposes of this Article VI, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article VI with respect
to the Debentures to the payment of all Senior Indebtedness that may at the time
be outstanding, provided, however, that (i) such Senior Indebtedness is assumed
by the new corporation, if any, resulting from any such reorganization or
readjustment, and (ii) the rights of the holders of such Senior Indebtedness are
not, without the consent of such holders, altered by such reorganization or
readjustment. The consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or dissolution of the
Company following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided for in Article 5 of the Indenture shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of this
Section 6.3 if such other cor-
<PAGE>
-16-
poration shall, as a part of such consolidation, merger, conveyance or transfer,
comply with the conditions stated in Article 5 of the Indenture. Nothing in
Section 6.2 hereof or in this Section 6.3 shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 7.06 of the Indenture.
SECTION 6.4. Subrogation.
-----------
Subject to the payment in full of all Senior Indebtedness, the rights
of the Holders of the Debentures shall be subrogated to the rights of the
holders of such Senior Indebtedness to receive payments or distributions of
cash, property or securities of the Company applicable to such Senior
Indebtedness until the principal of, premium, if any, and interest on, and all
other amounts owing in respect of, the Debentures shall be paid in full; and,
for the purposes of such subrogation, no payments or distributions to the
holders of such Senior Indebtedness of any cash, property or securities to which
the Holders of the Debentures or the Trustee would be entitled except for the
provisions of this Article VI, and no payment over pursuant to the provisions of
this Article VI, to or for the benefit of the holders of such Senior
Indebtedness by Holders of the Debentures or the Trustee, shall, as between the
Company, its creditors other than holders of Senior Indebtedness, and the
Holders of the Debentures be deemed to be a payment by the Company to or on
account of such Senior Indebtedness. It is understood that the provisions of
this Article VI are and are intended solely for the purposes of defining the
relative rights of the Holders of the Debentures, on the one hand, and the
holders of Senior Indebtedness on the other hand.
Nothing contained in this Article VI or elsewhere in this Securities
Resolution or the Indenture or in the Debentures is intended to or shall impair,
as between the Company, its creditors other than the holders of Senior
Indebtedness, and the Holders of the Debentures, the obligation of the Company,
which is absolute and unconditional, to pay to the Holders of the Debentures the
principal of (and premium, if any) and interest on and all other amounts owing
in respect of the Debentures as and when the same shall become due and payable
in accordance with their terms, or is intended to or shall affect the relative
rights of the Holders of the Debentures and creditors of the Company, other than
the holders of Senior Indebtedness, nor shall anything herein or therein prevent
the Trustee or the Holder of any Debenture from exercising all remedies
otherwise permitted by applicable law upon default under the Indenture, as
amended and supplemented by this Securities Resolution, subject to the rights,
if any, under this Article VI of the holders of such Senior Indebtedness in
respect of cash, property or securities of the Company received upon the
exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to
in this Article VI, the Trustee, subject to the provisions of Section 7.01 of
the Indenture, and the Holders of the Debentures, shall be entitled to rely upon
any order or decree made by
<PAGE>
-17-
any court of competent jurisdiction in which such dissolution, winding-up,
liquidation or reorganization proceedings are pending, or a certificate of the
receiver, trustee in bankruptcy, liquidation trustee, agent or other Person
making such payment or distribution, delivered to the Trustee or to the Holders
of the Debentures, for the purposes of ascertaining the Persons entitled to
participate in such distribution, the holders of Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article VI.
SECTION 6.5. Trustee to Effectuate Subordination.
-----------------------------------
Each Holder of a Debenture by such holder's acceptance thereof
authorizes and directs the Trustee on such holder's behalf to take such action
as may be necessary or appropriate to effectuate the subordination provided in
this Article VI and appoints the Trustee as such holder's attorney-in-fact for
any and all such purposes.
SECTION 6.6. Notice by the Company.
---------------------
The Company shall give prompt written notice to a Trust Officer of any
fact known to the Company that would prohibit the making of any payment of
monies to or by the Trustee in respect of the Debentures pursuant to the
provisions of this Article VI. Notwithstanding the provisions of this Article VI
or any other provision of the Indenture and this Securities Resolution, the
Trustee shall not be charged with knowledge of the existence of any facts that
would prohibit the making of any payment of monies to or by the Trustee in
respect of the Debentures pursuant to the provisions of this Article VI unless
and until a Trust Officer shall have received written notice thereof from the
Company or a holder or holders of Senior Indebtedness or from any representative
or trustee therefor; and before the receipt of any such written notice, the
Trustee, subject to the provisions of Section 7.01 of the Indenture, shall be
entitled in all respects to assume that no such facts exist; provided, however,
that if the Trustee shall not have received the notice provided for in this
Section 6.6 at least two Business Days prior to the date upon which by the terms
hereof any money may become payable for any purpose (including, without
limitation, the payment of the principal of (or premium, if any) or interest on
any Debenture) then, anything herein contained to the contrary notwithstanding,
the Trustee shall have full power and authority to receive such money and to
apply the same to the purposes for which they were received, and shall not be
affected by any notice to the contrary that may be received by it within two
Business Days prior to such date.
The Trustee, subject to the provisions of Section 7.01 of the
Indenture, shall be entitled to rely on the delivery to it of a written notice
by a Person representing himself to be a holder of Senior Indebtedness (or a
representative or trustee on behalf of such
<PAGE>
-18-
holder) to establish that such notice has been given by a holder of such Senior
Indebtedness or a representative or trustee on behalf of any such holder or
holders. In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of such
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article VI, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of such Senior
Indebtedness held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such Person under this Article VI, and if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
SECTION 6.7. Rights of the Trustee; Holders of Senior Indebtedness.
-----------------------------------------------------
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article VI in respect of any Senior Indebtedness at any
time held by it, to the same extent as any other holder of Senior Indebtedness,
and nothing in the Indenture or this Securities Resolution shall deprive the
Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article VI, and no implied covenants or
obligations with respect to the holders of such Senior Indebtedness shall be
read into the Indenture or this Securities Resolution against the Trustee. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness and, subject to the provisions of Section 7.01 of the Indenture,
the Trustee shall not be liable to any holder of Senior Indebtedness if it shall
pay over or deliver to Holders of Debentures, the Company or any other Person
money or assets to which any holder of Senior Indebtedness shall be entitled by
virtue of this Article VI or otherwise.
SECTION 6.8. Subordination May Not Be Impaired.
---------------------------------
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of the
Indenture or this Securities Resolution, regardless of any knowledge thereof
that any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent
<PAGE>
-19-
of or notice to the Trustee or the Holders of the Debentures, without incurring
responsibility to the Holders of the Debentures and without impairing or
releasing the subordination provided in this Article VI or the obligations
hereunder of the Holders of the Debentures to the holders of such Senior
Indebtedness, do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, such
Senior Indebtedness, or otherwise amend or supplement in any manner such Senior
Indebtedness or any instrument evidencing the same or any agreement under which
such Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing such
senior Indebtedness; (iii) release any Person liable in any manner for the
collection of such Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
ARTICLE VII
COVENANT TO LIST ON EXCHANGE
SECTION 7.1. Listing on an Exchange.
----------------------
If the Debentures are to be distributed to the holders of Preferred
Securities as described in Section 2.4(a), the Company will, if the Debentures
are not already so listed, use its best efforts to list such Debentures on the
New York Stock Exchange, Inc. or on such other exchange as the Preferred
Securities are then listed.
ARTICLE VIII
FORM OF DEBENTURE
SECTION 8.1. Form of Debenture.
-----------------
The Debentures and the Trustee's Certificate of Authentication to be
endorsed thereon are substantially in the form attached as Exhibit A hereto.
---------
<PAGE>
-20-
ARTICLE IX
EFFECTIVENESS OF THIS SECURITIES RESOLUTION
SECTION 9.1. Effectiveness.
-------------
This Securities Resolution shall be effective as of March 25, 1999.
ARTICLE X
ORIGINAL ISSUE OF DEBENTURES
SECTION 10.1. Original Issue of Debentures.
----------------------------
Debentures in the aggregate principal amount of $206,200,000 may,
upon execution of this Securities Resolution, be executed by the Company and
delivered to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver said Debentures to or upon the written order of the
Company, signed by its Chairman, its Vice Chairman, its President, or any Vice
President and its Treasurer or an Assistant Treasurer, without any further
action by the Company.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Ratification of Indenture.
-------------------------
The Indenture, as supplemented by this Securities Resolution as
provided for in Section 2.01 of the Indenture, is in all respects ratified and
confirmed, and this Securities Resolution shall be deemed part of the Indenture
in the manner and to the extent herein and therein provided.
SECTION 11.2. Governing Law.
-------------
This Securities Resolution and each Debenture shall be deemed to be a
contract made under the internal laws of the State of Wisconsin, and for all
purposes shall be construed in accordance with the laws of said State.
<PAGE>
-21-
SECTION 11.3. Separability.
------------
In case any one or more of the provisions contained in this
Securities Resolution or in the Debentures shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Securities
Resolution or of the Debentures, but this Securities Resolution and the
Debentures shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
<PAGE>
OFFICERS' CERTIFICATE
RELATING TO
SECURITIES RESOLUTION NO. 1
OF
WISCONSIN ENERGY CORPORATION
The undersigned, as Officers of Wisconsin Energy Corporation (the
"Company"), do hereby certify that the foregoing is a true and correct copy of
-------
Securities Resolution No. 1, relating to the Indenture between the Company and
The First National Bank of Chicago, as trustee (the "Indenture"), which has been
---------
duly adopted by the Board of Directors (the "Board") of the Company or by an
-----
Officer or a committee of Officers pursuant to the authorized delegation of the
Board on the 16th day of March 1999; and that said resolution has not been
rescinded and remains in full force and effect. Capitalized terms used but not
defined herein have the meanings given such terms in the Indenture.
IN WITNESS WHEREOF, this Officers' Certificate has been duly executed
on this 25th day of March 1999.
By: /s/ Calvin H. Baker
------------------------------------
Name: Calvin H. Baker
Title: Treasurer and Chief Financial
Officer
By: /s/ Thomas H. Fehring
------------------------------------
Name: Thomas H. Fehring
Title: Corporate Secretary
<PAGE>
EXHIBIT A
A Form of Registered Security
CUSIP No.: 976657 AA 4 $206,200,000
WISCONSIN ENERGY CORPORATION
6.85% Junior Subordinated Debentures due March 31, 2039
WISCONSIN ENERGY CORPORATION
promises to pay to THE FIRST NATIONAL BANK OF CHICAGO in its capacity as
Property Trustee under the Amended and Restated Trust Agreement dated as of
March 25, 1999
or registered assigns
the principal sum of TWO HUNDRED SIX MILLION TWO HUNDRED THOUSAND ($206,200,000)
Dollars on March 31, 2039
Interest Payment Dates: March 31, June 30, September 30 and December 31
Record Dates: March 15, May 15, September 15 and December 15
Dated: March 25, 1999
THE FIRST NATIONAL BANK OF CHICAGO
Transfer Agent and Paying Agent
WISCONSIN ENERGY CORPORATION
By: _____________________________________
[Title of Authorized Officer]
By: _____________________________________
[Title of the Authorized Officer]
(SEAL)
Authenticated:
THE FIRST NATIONAL BANK OF CHICAGO
Registrar
By: _________________________
Authorized Signature
A-1
<PAGE>
WISCONSIN ENERGY CORPORATION
6.85% Junior Subordinated Debentures due March 31, 2039
1. Interest.
Wisconsin Energy Corporation ("Company"), a Wisconsin corporation,
promises to pay interest on the principal amount of this Security at
the rate per annum shown above. The Company will pay interest on March
31, June 30, September 30 and December 31 of each year commencing June
30, 1999, except as otherwise provided for in the Securities
Resolution. Interest on the Securities will accrue from the most
recent date to which interest has been paid or, if no interest has
been paid, from March 25, 1999. Interest will be computed on the basis
of a 360-day year of twelve 30-day months.
2. Method of Payment.
The Company will pay interest on the Securities to the persons who are
registered holders of Securities at the close of business on the
record date for the next interest payment date, except as otherwise
provided in the Indenture or the Securities Resolution. Holders must
surrender Securities to a Paying Agent to collect principal payments.
The Company will pay principal and interest in money of the United
States that at the time of payment is legal tender for payment of
public and private debts. The Company may pay principal and interest
by check payable in such money. It may mail an interest check to a
holder's registered address.
3. Securities Agents.
Initially, The First National Bank of Chicago, Attention: Corporate
Trust Services Division, will act as Paying Agent, Transfer Agent and
Registrar. The Company may change any Paying Agent or Transfer Agent
without notice or provide for more than one such agent. The Company or
any Affiliate may act in any such capacity. Subject to certain
conditions, the Company may change the Trustee.
4. Indenture; Subordination.
The Company issued the securities of this series ("Securities") under
an Indenture dated as of March 15, 1999 ("Indenture") between the
Company and The First National Bank of Chicago (the "Trustee"). The
terms of the Securities include those stated in the Indenture and in
the Securities Resolution creating the Securities (the "Securities
Resolution") and those made part of the Indenture by the Trust
Indenture Act of 1939 (15 U.S. Code (S)(S) 77aaa-77bbbb).
Securityholders are referred to the Indenture, the Securities
Resolution and the
A-2
<PAGE>
Trust Indenture Act for a statement of such terms, including the
provisions relating to (i) extension of interest payments in Article
IV of the Securities Resolution and (ii) subordination in Article VI
thereof.
5. Optional Redemption.
On or after March 25, 2004, the Company may redeem all the Securities
at any time or some of them from time to time at a redemption price
equal to 100% of the principal amount plus accrued and unpaid interest
to the redemption date.
6. Additional Optional Redemption.
In addition to redemptions pursuant to the above paragraph 5, if a
Special Event (as defined below) has occurred and is continuing then
the Company shall have the right upon not less than 30 days nor more
than 60 days notice to the Holders of the Securities to redeem the
Securities, in whole but not in part, for cash within 90 days
following the occurrence of such Special Event (the "90 Day Period")
at a redemption price equal to 100% of the principal amount to be
redeemed plus any accrued and unpaid interest thereon, if any, to the
date of such redemption (the "Redemption Price"); provided, however,
that in the case of a Tax Event, if at the time there is available to
the Company the opportunity to eliminate, within the 90 Day Period,
the Tax Event by taking some ministerial action ("Ministerial
Action"), such as filing a form or making an election, or pursuing
some other similar reasonable measure which has no adverse effect on
the Company, the Trust or the Holders of the Trust Securities issued
by the Trust, the Company shall pursue such Ministerial Action instead
of redemption, and, provided, further, that the Company shall have no
right to redeem the Securities while the Trust is pursuing any
Ministerial Action pursuant to its obligations under the Trust
Agreement. The Redemption Price shall be paid prior to 12:00 noon, New
York time, on the date of such redemption or such earlier time as the
Company determines, provided that the Company shall deposit with the
Trustee an amount sufficient to pay the Redemption Price by 10:00
a.m., New York time, on the date such Redemption Price is to be paid.
A "Special Event" shall mean either a Tax Event or an Investment
Company Event. "Tax Event" shall mean that the Trust shall have
received an opinion of counsel (which may be regular counsel to the
Company or an Affiliate) experienced in such matters to the effect
that, as a result of any (a) amendment to, or change (including any
announced proposed change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or
taxing authority thereof, or (b) official administrative written
decision, pronouncement or action or judicial decision interpreting or
applying such laws or regulations, in each case which amendment or
change is effective or which proposed change, pronouncement, action or
decision is announced on or after the
A-3
<PAGE>
date of issuance of the Securities, there is more than an
insubstantial risk that (i) the Trust is, or will be within 90 days of
the date of opinion of counsel, subject to United States Federal
income tax with respect to interest received on the Securities, (ii)
interest payable by the Company to the Trust on the Securities is not,
or will not within 90 days of the date of the opinion of counsel, be
deductible for United States Federal income tax purposes, or (iii) the
Trust is, or will be within 90 days of the date of opinion of counsel,
subject to more than a de minimis amount of other taxes, duties or
other governmental charges. "Investment Company Event" shall mean the
Trust will have received an opinion of counsel experienced in such
matters to the effect that, as a result of the occurrence of a change
in law or regulation or a change in interpretation or application of
law or regulation by any legislative body, court, governmental agency
or regulatory authority on or after the date of original issuance of
the Securities by the Trust, the Trust is or will be considered an
"investment company" that is required to be registered under the
Investment Company Act of 1940, as amended.
7. Notice of Redemption.
Notice of redemption will be mailed at least 30 but not more than 60
days before the redemption date to each holder of Securities to be
redeemed at his registered address.
8. Denominations, Transfer, Exchange.
The Securities are in registered form without coupons in denominations
of $25 and whole multiples of $25. The transfer of Securities may be
registered and Securities may be exchanged as provided in the
Indenture. The Transfer Agent may require a holder, among other
things, to furnish appropriate endorsements and transfer documents and
to pay any taxes and fees required by law or the Indenture. The
Transfer Agent need not exchange or register the transfer of any
Security or portion of a Security selected for redemption. Also, it
need not exchange or register the transfer of any Securities for a
period of 15 days before a selection of Securities to be redeemed.
9. Persons Deemed Owners.
The registered holder of a Security may be treated as its owner for
all purposes.
10. Amendments and Waivers.
The Indenture and the Securities may be amended, and any default may
be waived. Subject to certain exceptions, we and the trustee may amend
the Securities and the Indenture with the written consent of the
holders of a majority in
A-4
<PAGE>
aggregate liquidation amount of the preferred securities whose rights
will be adversely affected by such amendment and if the principal (and
premium, if any) of the Securities and all accrued and unpaid interest
thereon have been paid in full. Furthermore, no amendment can be made
to the provisions of the Indenture allowing holders of preferred
securities to sue directly following our failure to make timely
payments on the Securities as described above without the prior
consent of the holder of each preferred security then outstanding
unless and until the principal (and premium, if any) of the Securities
and all accrued and unpaid interest thereon have been paid in full.
Without the consent of any Securityholder, the Indenture or the
Securities may be amended, among other things, to cure any ambiguity,
omission, defect or inconsistency; to provide for assumption of
Company obligations to Securityholders; or to make any change that
does not materially adversely affect the rights of any Securityholder.
11. Restrictive Covenants.
The Securities are unsecured general obligations of the Company
limited to $206,200,000 principal amount. The Indenture does not
limit other unsecured debt.
12. Successors.
When a successor assumes all the obligations of the Company under the
Securities and the Indenture, the Company will be released from those
obligations.
13. Defeasance Prior to Redemption or Maturity.
Subject to certain conditions, the Company at any time may terminate
some or all of its obligations under the Securities and the Indenture
if the Company deposits with the Trustee money or U.S. Government
Obligations for the payment of principal and interest on the
Securities to redemption or maturity. U.S. Government Obligations are
securities backed by the full faith and credit of the United States of
America or certificates representing an ownership interest in such
Obligations.
14. Defaults and Remedies.
An Event of Default includes: default for 60 days in payment of
interest on the Securities; default in payment of principal on the
Securities; default by the Company for a specified period after notice
to it in the performance of any of its other agreements applicable to
the Securities; certain events of bankruptcy or insolvency; and any
other Event of Default provided for in the series. If an
A-5
<PAGE>
Event of Default occurs and is continuing, the Trustee or the holders
of at least 25% in principal amount of the Securities may declare the
principal of and accrued interest on all the Securities to be due and
payable immediately.
Securityholders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the Securities.
Subject to certain limitations, holders of a majority in principal
amount of the Securities may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Securityholders notice
of any continuing default (except a default in payment of principal or
interest) if it determines that withholding notice is in their
interests. The Company must furnish an annual compliance certificate
to the Trustee.
15. Trustee Dealings with Company.
The First National Bank of Chicago, the Trustee under the Indenture,
in its individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company or its Affiliates,
and may otherwise deal with the Company or its Affiliates, as if it
were not Trustee.
16. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under
the Securities or the Indenture or for any claim based on, in respect
of or by reason of such obligations or their creation. Each
Securityholder by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for
the issue of the Securities.
17. Authentication.
This Security shall not be valid until authenticated by a manual
signature of the Registrar.
18. Abbreviations.
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as: TEN COM (=tenants in common), TEN ENT (=tenants
by the entirety), JT TEN (=joint tenants with right of survivorship
and not as tenants in common), CUST (=custodian), U/G/M/A (=Uniform
Gifts to Minors Act) and U/T/M/A (=Uniform Transfers to Minors Act).
A-6
<PAGE>
EXHIBIT 4.48
=================================================================
AMENDED AND RESTATED
TRUST AGREEMENT
AMONG
WISCONSIN ENERGY CORPORATION, AS DEPOSITOR,
THE FIRST NATIONAL BANK OF CHICAGO,
AS PROPERTY TRUSTEE,
FIRST CHICAGO DELAWARE INC,
AS DELAWARE TRUSTEE
AND
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
DATED AS OF MARCH 25, 1999
WEC CAPITAL TRUST I
=================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I DEFINED TERMS............................................................................. 2
Section 1.1. Definitions.................................................................... 2
ARTICLE II ESTABLISHMENT OF THE TRUST................................................................ 10
Section 2.1. Name........................................................................... 10
Section 2.2. Office of the Delaware Trustee; Principal Place of Business.................... 11
Section 2.3. Initial Contribution of Trust Property; Organizational Expenses................ 11
Section 2.4. Issuance of the Preferred Securities........................................... 11
Section 2.5. Issuance of the Common Securities; Subscription and Purchase of
Debentures................................................................. 11
Section 2.6. Declaration of Trust........................................................... 12
Section 2.7. Authorization to Enter into Certain Transactions............................... 12
Section 2.8. Assets of Trust................................................................ 16
Section 2.9. Title to Trust Property........................................................ 17
ARTICLE III PAYMENT ACCOUNT........................................................................... 17
Section 3.1. Payment Account................................................................ 17
ARTICLE IV CERTAIN TERMS OF THE TRUST SECURITIES..................................................... 17
Section 4.1. Distributions.................................................................. 17
Section 4.2. Redemption..................................................................... 19
Section 4.3. Subordination of Common Securities............................................. 21
Section 4.4. Payment Procedures............................................................. 21
Section 4.5. Tax Returns and Reports........................................................ 22
Section 4.7. Payments under Indenture....................................................... 22
ARTICLE V TRUST SECURITIES CERTIFICATES............................................................. 22
Section 5.1. Initial Ownership.............................................................. 22
Section 5.2. The Trust Securities Certificates.............................................. 22
Section 5.3. Execution and Delivery of Trust Securities Certificates........................ 23
Section 5.4. Registration of Transfer and Exchange of Preferred Securities
Certificates............................................................... 23
Section 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates............. 24
Section 5.6. Persons Deemed Securityholders................................................. 24
</TABLE>
-i-
<PAGE>
<TABLE>
<S> <C>
Section 5.7. Access to List of Securityholders' Names and Addresses......................... 25
Section 5.8. Maintenance of Office or Agency................................................ 25
Section 5.9. Appointment of Paying Agent.................................................... 25
Section 5.10. Ownership of Common Securities by Depositor.................................... 26
Section 5.11. Book-Entry Preferred Securities Certificates; Common Securities
Certificate................................................................ 27
Section 5.12. Notices to Clearing Agency..................................................... 28
Section 5.13. Definitive Preferred Securities Certificates................................... 28
Section 5.14. Rights of Securityholders...................................................... 28
ARTICLE VI ACTS OF SECURITYHOLDERS; MEETINGS; VOTING.............................................. 31
Section 6.1. Limitations on Voting Rights................................................... 31
Section 6.2. Notice of Meetings............................................................. 32
Section 6.3. Meetings of Preferred Securityholders.......................................... 32
Section 6.4. Voting Rights.................................................................. 33
Section 6.5. Proxies, etc................................................................... 33
Section 6.6. Securityholder Action by Written Consent....................................... 33
Section 6.7. Record Date for Voting and Other Purposes...................................... 33
Section 6.8. Acts of Securityholders........................................................ 34
Section 6.9. Inspection of Records.......................................................... 35
ARTICLE VII REPRESENTATIONS AND WARRANTIES......................................................... 35
Section 7.1. Representations and Warranties of the Property Trustee and the Delaware
Trustee.................................................................... 35
Section 7.2. Representations and Warranties of Depositor.................................... 37
ARTICLE VIII THE TRUSTEES........................................................................... 37
Section 8.1. Certain Duties and Responsibilities............................................ 37
Section 8.2. Certain Notices................................................................ 39
Section 8.3. Certain Rights of Property Trustee............................................. 39
Section 8.4. Not Responsible for Recitals or Issuance of Securities......................... 42
Section 8.5. May Hold Securities............................................................ 42
Section 8.6. Compensation; Indemnity; Fees.................................................. 42
Section 8.7. Corporate Property Trustee Required; Eligibility of Trustees................... 43
Section 8.8. Conflicting Interests.......................................................... 44
Section 8.9. Co-Trustees and Separate Trustee............................................... 44
Section 8.10. Resignation and Removal, Appointment of Successor.............................. 46
Section 8.11. Acceptance of Appointment by Successor......................................... 47
Section 8.12. Merger, Conversion, Consolidation or Succession to Business.................... 48
Section 8.13. Preferential Collection of Claims Against Depositor or Trust................... 48
Section 8.14. Reports by the Property Trustee................................................ 49
</TABLE>
-ii-
<PAGE>
<TABLE>
<S> <C>
Section 8.15. Reports to the Property Trustee............................................ 49
Section 8.16. Evidence of Compliance with Conditions Precedent........................... 49
Section 8.17. Number of Trustees......................................................... 49
Section 8.18. Delegation of Power........................................................ 50
ARTICLE IX TERMINATION, LIQUIDATION AND MERGER................................................... 50
Section 9.1. Dissolution Upon Expiration Date........................................... 50
Section 9.2. Early Dissolution.......................................................... 51
Section 9.3. Termination................................................................ 51
Section 9.4. Liquidation................................................................ 51
Section 9.5. Mergers, Consolidations, Amalgamations or Replacements of the Trust........ 53
ARTICLE X MISCELLANEOUS PROVISIONS.............................................................. 54
Section 10.1. Limitation of Rights of Securityholders.................................... 54
Section 10.2. Amendment.................................................................. 54
Section 10.3. Separability............................................................... 56
Section 10.4. Governing Law.............................................................. 56
Section 10.5. Payments Due on Non-Business Day........................................... 57
Section 10.6. Successors................................................................. 57
Section 10.7. Headings................................................................... 57
Section 10.8. Reports, Notices and Demands............................................... 57
Section 10.9. Agreement Not to Petition.................................................. 58
Section 10.10. Trust Indenture Act; Conflict with Trust Indenture Act..................... 58
Section 10.11. Acceptance of Terms of Trust Agreement, Guarantee and Indenture............ 59
SIGNATURES.......................................................................................... S-1
EXHIBIT A Certificate of Trust..................................................................... A-1
EXHIBIT B Letter of Representation................................................................. B-1
EXHIBIT C Form of Common Security.................................................................. C-1
EXHIBIT D Form of Preferred Security............................................................... D-1
</TABLE>
-iii-
<PAGE>
Certain Sections of the Trust Agreement Relating
to Section 310 through 318 of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture Sections of this
Act Section Trust Agreement
- --------------- ----------------
<S> <C>
Section 310(a)(1)............................................8.7(a), 8.7(b)
(a)(2).......................................................8.7(a)
(a)(3).......................................................8.9
(a)(4).......................................................8.5, 2.7(a)(ii)
(b)..........................................................8.8
Section 311(a)...............................................8.13
(b)..........................................................8.13
Section 312(a)...............................................5.7
(b)..........................................................5.7
(c)..........................................................5.7
Section 313(a)...............................................8.14(a)
(a)(4).......................................................8.14(a)
(b)..........................................................8.14(a)
(c)..........................................................8.14(a), 10.8
Section 314(a)...............................................8.15
(b)..........................................................Not Applicable
(c)(1).......................................................8.16
(c)(2).......................................................8.16
(c)(3).......................................................Not Applicable
(d)..........................................................Not Applicable
(e)..........................................................1.1, 8.16
Section 315(a)...............................................8.1(a), (c), 8.3(a)
(b)..........................................................8.2, 10.8
(c)..........................................................8.1(a)
(d)..........................................................8.1, 8.3
(e)..........................................................Not Applicable
Section 316(a)...............................................Not Applicable
(a)(1)(A)....................................................Not Applicable
(a)(1)(B)....................................................Not Applicable
(a)(2).......................................................Not Applicable
(b)..........................................................5.14
(c)..........................................................6.7
Section 317(a)(1)............................................Not Applicable
(a)(2).......................................................Not Applicable
(b)..........................................................5.9, 8.2
Section 318(a)...............................................10.10
</TABLE>
Note: This reconciliation and tie sheet shall not, for any purpose, be deemed
to be a part of the Trust Agreement.
<PAGE>
AMENDED AND RESTATED TRUST AGREEMENT, dated as of March 25, 1999,
among (i) Wisconsin Energy Corporation, a Wisconsin corporation (including any
successors or assigns, the "Depositor"), (ii) The First National Bank of
---------
Chicago, a national banking association organized under the laws of the United
States, as property trustee (the "Property Trustee" and, in its separate
----------------
corporate capacity and not in its capacity as Property Trustee, the "Bank"),
----
(iii) First Chicago Delaware Inc., a Delaware corporation, as Delaware trustee
(the "Delaware Trustee"), (iv) Calvin H. Baker, an individual, and Thomas H.
----------------
Fehring, an individual, each of whose address is c/o Wisconsin Energy
Corporation, 231 West Michigan Street, Milwaukee, Wisconsin 53201 (each, an
"Administrative Trustee" and, collectively, the "Administrative Trustees") (the
---------------------- -----------------------
Property Trustee, the Delaware Trustee and the Administrative Trustees referred
to collectively as the "Trustees") and (v) the several Holders, as hereinafter
--------
defined (this "Trust Agreement").
---------------
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Depositor and the Trustees have heretofore duly declared
and established a business trust pursuant to the Delaware Business Trust Act by
entering into that certain Trust Agreement, dated as of February 25, 1999 (the
"Original Trust Agreement"), and by the execution and filing with the Secretary
------------------------
of State of the State of Delaware of the Certificate of Trust, filed on February
25, 1999, attached as Exhibit A; and
WHEREAS, the Depositor and the Trustees desire to amend and restate
the Original Trust Agreement in its entirety as set forth herein to provide for,
among other things, (i) the issuance of the Common Securities by the Trust to
the Depositor, (ii) the issuance and sale of the Preferred Securities by the
Trust pursuant to the Underwriting Agreement and (iii) the acquisition by the
Trust from the Depositor of all of the right, title and interest in the
Debentures;
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, each party, for the benefit of the other parties
and for the benefit of the Securityholders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
<PAGE>
-2-
ARTICLE I
DEFINED TERMS
Section 1.1. Definitions.
-----------
For all purposes of this Trust Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
---
"Administrative Trustee" means each of Calvin H. Baker and Thomas H.
----------------------
Fehring, solely in such Person's capacity as Administrative Trustee of the Trust
created and continued hereunder and not in such Person's individual capacity, or
such Administrative Trustee's successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"Affiliate" of any specified Person means any other Person directly or
---------
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Bank" has the meaning specified in the preamble to this Trust
----
Agreement.
"Bankruptcy Event" means, with respect to any Person:
----------------
<PAGE>
-3-
(a) the entry of a decree or order by a court having jurisdiction in
the premises judging such Person a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjudication
or composition of or in respect of such Person under any applicable Federal
or State bankruptcy, insolvency, reorganization or other similar law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of such Person or of any substantial part of its
property or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a period
of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under any
applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law, or the consent by it to the filing of any such petition or to
the appointment of a receiver, liquidator, assignee, trustee, sequestrator
(or similar official) of such Person or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due and its willingness to be adjudicated a
bankrupt, or the taking of corporate action by such Person in furtherance
of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
---------------
"Book-Entry Preferred Securities Certificates" means a beneficial
--------------------------------------------
interest in the Preferred Securities Certificates, ownership and transfers of
which shall be made through book entries by a Clearing Agency as described in
Section 5.11.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a
------------
day on which banking institutions in The City of New York are authorized or
required by law to remain closed, or (c) a day on which the Federal Reserve Bank
of New York is not open.
"Certificate Depository Agreement" means the agreement among the
--------------------------------
Trust, the Depositor and The Depository Trust Company, as the initial Clearing
Agency, dated as of the Closing Date, relating to the Trust Securities
Certificates, substantially in the form attached as Exhibit B, as the same may
be amended and supplemented from time to time.
"Clearing Agency" means an organization registered as a "clearing
---------------
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. The Depository Trust Company will be the initial Clearing Agency.
<PAGE>
-4-
"Clearing Agency Participant" means a broker, dealer, bank, other
---------------------------
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" has the meaning specified in the Underwriting
------------
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
----
"Commission" means the Securities and Exchange Commission, as from
----------
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Securities Certificate" means a certificate evidencing
-----------------------------
ownership of Common Securities, substantially in the form attached as Exhibit C.
"Common Security" means an undivided beneficial ownership interest in
---------------
the assets of the Trust, having a Liquidation Amount of $25 and having the
rights provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Corporate Trust Office" means the principal office of the Property
----------------------
Trustee.
"Debenture Event of Default" means an event of default under the
--------------------------
Indenture.
"Debenture Redemption Date" means, with respect to any Debentures to
-------------------------
be redeemed under the Indenture, the date fixed for redemption under the
Indenture.
"Debentures" means the aggregate principal amount of the Depositor's
----------
6.85% Junior Subordinated Debentures, issued pursuant to a Securities Resolution
under the Indenture.
"Definitive Preferred Securities Certificates" means either or both
--------------------------------------------
(as the context requires) of (a) Preferred Securities Certificates issued as
Book-Entry Preferred Securities Certificate as provided in Section 5.11(a) and
(b) Preferred Securities Certificates issued in certificated, fully registered
form as provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
---------------------------
Delaware Code, 12 Del. C. Section 3801, et seq., as it may be amended from time
------
to time.
<PAGE>
-5-
"Delaware Trustee" means the corporation identified as the "Delaware
---------------- --------
Trustee" in the preamble to this Trust Agreement solely in its capacity as
- -------
Delaware Trustee of the Trust created and continued hereunder and not in its
individual capacity, or its successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this Trust
---------
Agreement.
"Distribution Date" has the meaning specified in Section 4.1(a).
-----------------
"Distributions" means amounts payable in respect of the Trust
-------------
Securities as provided in Section 4.1.
"Event of Default" means any one of the following events (whatever the
----------------
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of an Event of Default with respect to a Debenture;
or
(b) default by the Property Trustee in the payment of any Distribution
when it becomes due and payable, and continuation of such default for a
period of 60 days; or
(c) default by the Property Trustee in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect, of
any covenant or warranty of the Trustees in this Trust Agreement (other
than a covenant or warranty a default in the performance or breach of which
is dealt with in clause (b) or (c) above) and continuation of such default
or breach for a period of 90 days after there has been given, by registered
or certified mail, to the defaulting Trustee or Trustees by the Holders of
at least 25% in aggregate liquidation preference of the Outstanding
Preferred Securities a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee and the failure by the Depositor to appoint a successor Property
Trustee within 60 days thereof.
"Expiration Date" has the meaning specified in Section 9.1.
---------------
<PAGE>
-6-
"Guarantee" means the Guarantee Agreement executed and delivered by
---------
the Depositor and The First National Bank of Chicago, as guarantee trustee,
contemporaneously with the execution and delivery of this Trust Agreement, for
the benefit of the Holders of the Trust Securities, as amended from time to
time.
"Indenture" means the Indenture, dated as of March 15, 1999, between
---------
the Depositor and the Indenture Trustee, together with the Securities Resolution
dated as of March 16, 1999 relating to the Debentures, each as amended or
supplemented from time to time.
"Indenture Trustee" means The First National Bank of Chicago, a
-----------------
national banking association organized under the laws of the United States, as
trustee under the Indenture and any successor thereto.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
----
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust
-----------
Securities, Trust Securities having a Liquidation Amount equal to the principal
amount of Debentures to be contemporaneously redeemed in accordance with the
Indenture, allocated to the Common Securities and the Preferred Securities based
upon the relative Liquidation Amounts of such classes and the proceeds of which
will be used to pay the Redemption Price of such Trust Securities, and (b) with
respect to a distribution of Debentures to Holders of Trust Securities in
connection with a dissolution or liquidation of the Trust, Debentures having a
principal amount equal to the Liquidation Amount of the Trust Securities of the
Holder to whom such Debentures are distributed.
"Liquidation Amount" means the stated amount (expressed in U.S.
------------------
Dollars) per Trust Security.
"Liquidation Date" means the date on which Debentures are to be
----------------
distributed to Holders of Trust Securities in connection with a termination and
liquidation of the Trust pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in Section
------------------------
9.4(d).
"Ministerial Action" means the taking of an action, such as filing a
------------------
form or making an election, or pursuing some other similar reasonable measure
that will have no adverse effect on the Trust, the Depositor or the Holders of
the Trust Securities and will involve no material cost.
<PAGE>
-7-
"1940 Act" means the Investment Company Act of 1940, as amended.
--------
"Officer" means the Chairman, any Vice-Chairman, the President, any
-------
Executive or Senior Vice President, any Vice President, the Treasurer or any
Assistant Treasurer, the Secretary or any Assistant Secretary of the Depositor.
"Officers' Certificate" means a certificate signed by two Officers of
---------------------
the Depositor and delivered to the appropriate Trustee. One of the officers
signing an Officers' Certificate given pursuant to Section 8.16 shall be the
principal executive, financial or accounting officer of the Depositor. Any
Officers' Certificate delivered with respect to compliance with a condition or
covenant provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
------------------
counsel for the Trust, the Property Trustee or the Depositor, and who shall be
reasonably acceptable to the Property Trustee.
"Original Trust Agreement" has the meaning specified in the recitals
------------------------
to this Trust Agreement.
"Outstanding", when used with respect to Preferred Securities, means,
-----------
as of the date of determination, all Preferred Securities theretofore executed
and delivered under this Trust Agreement, except:
(a) Preferred Securities theretofore cancelled by the Property Trustee
or delivered to the Property Trustee for cancellation;
(b) Preferred Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property Trustee
or any
<PAGE>
-8-
Paying Agent for the Holders of such Preferred Securities; provided that,
if such Preferred Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Trust Agreement; and
(c) Preferred Securities which have been paid or in exchange for or in
lieu of which other Preferred Securities have been executed and delivered
pursuant to Sections 5.4, 5.5, 5.11 and 5.13;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Preferred Securities owned by the Depositor, any Trustee or any Affiliate of the
Depositor or any Trustee shall be disregarded and deemed not to be Outstanding,
except that (a) in determining whether any Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Preferred Securities that such Trustee knows to be so owned shall
be so disregarded and (b) the foregoing shall not apply at any time when all of
the outstanding Preferred Securities are owned by the Depositor, one or more of
the Trustees and/or any such Affiliate. Preferred Securities so owned which
have been pledged in good faith may be regarded as outstanding if the pledgee
establishes to the satisfaction of the Administrative Trustees the pledgee's
right so to act with respect to such Preferred Securities and that the pledgee
is not the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a Book-Entry
-----
Preferred Securities Certificate as reflected in the records of the Clearing
Agency or, if a Clearing Agency Participant is not the Owner, then as reflected
in the records of a Person maintaining an account with such Clearing Agency
(directly or indirectly, in accordance with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed
------------
pursuant to Section 5.9 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate
---------------
trust account maintained by the Property Trustee with the Bank in its trust
department for the benefit of the Securityholders in which all amounts paid in
respect of the Debentures will be held and from which the Property Trustee shall
make payments to the Securityholders in accordance with Sections 4.1 and 4.2.
"Person" means any individual, corporation, partnership, joint
------
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
<PAGE>
-9-
"Preferred Securities Certificate" means a certificate evidencing
--------------------------------
ownership of Preferred Securities, substantially in the form attached as Exhibit
D.
"Preferred Security" means an undivided beneficial ownership interest
------------------
in the assets of the Trust, having a Liquidation Amount of $25 and having the
rights provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Property Trustee" means the commercial bank or trust company
----------------
identified as the "Property Trustee" in the preamble to this Trust Agreement
solely in its capacity as Property Trustee of the Trust heretofore created and
continued hereunder and not in its individual capacity, or its successor in
interest in such capacity, or any successor property trustee appointed as herein
provided.
"Redemption Date" means, with respect to any Trust Security to be
---------------
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Debenture Redemption Date and the stated maturity
of the Debentures shall be a Redemption Date for a Like Amount of Trust
Securities.
"Redemption Price" means, with respect to any Trust Security, the
----------------
Liquidation Amount of such Trust Security, plus accumulated but unpaid
Distributions to the Redemption Date, plus the related amount of the premium, if
any, paid by the Depositor upon the concurrent redemption of a Like Amount of
Debentures, allocated on a pro rata basis (based on Liquidation Amounts) among
the Trust Securities.
"Relevant Trustee" shall have the meaning specified in Section 8.10.
----------------
"Securities Register" and "Securities Registrar" have the respective
------------------- --------------------
meanings specified in Section 5.4.
"Securities Resolution" means a resolution of the board of directors
---------------------
of the Depositor or any authorized committee of such board or by a committee of
Officers or an Officer pursuant to delegation by such board authorizing a series
or a supplemental indenture authorizing a series executed by an authorized
Officer.
"Securityholder" or "Holder" means a Person in whose name a Trust
-------------- ------
Security or Trust Securities is registered in the Securities Register; any such
Person being a beneficial owner within the meaning of the Delaware Business
Trust Act.
"series" means a series of securities or the securities of the series
------
issued under the Indenture.
<PAGE>
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"Trust" means the Delaware business trust created and continued hereby
-----
and identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as
---------------
the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including all exhibits hereto, including, for all
purposes of this Trust Agreement and any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Trust Agreement and any such modification, amendment or
supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
-------------------
force at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debentures, (b) any cash on deposit in,
--------------
or owing to, the Payment Account and (c) all proceeds and rights in respect of
the foregoing and any other property and assets for the time being held or
deemed to be held by the Property Trustee pursuant to the terms of this Trust
Agreement.
"Trust Securities Certificate" means any one of the Common Securities
----------------------------
Certificates or the Preferred Securities Certificates.
"Trust Security" means any one of the Common Securities or the
--------------
Preferred Securities.
"Trustees" means, collectively, the Property Trustee, the Delaware
--------
Trustee and the Administrative Trustees.
"Underwriting Agreement" means the Underwriting Agreement, dated as of
----------------------
March 16, 1999, among the Trust, the Depositor and the underwriters named
therein.
ARTICLE II
ESTABLISHMENT OF THE TRUST
Section 2.1. Name.
----
The Trust continued hereby shall be known as "WEC Capital Trust I," as
such name may be modified from time to time by the Administrative Trustees
following written
<PAGE>
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notice to the Holders of Trust Securities and the other Trustees, in which name
the Trustees may conduct the business of the Trust, make and execute contracts
and other instruments on behalf of the Trust and sue and be sued.
Section 2.2. Office of the Delaware Trustee; Principal Place of
--------------------------------------------------
Business.
--------
The address of the Delaware Trustee in the State of Delaware is 300
King Street, Wilmington, Delaware 19801, Attention: Corporate Trust Services
Division, or such other address in the State of Delaware as the Delaware Trustee
may designate by written notice to the Depositor. The principal executive
office of the Trust is c/o Wisconsin Energy Corporation, 231 West Michigan
Street, Milwaukee, Wisconsin 53201.
Section 2.3. Initial Contribution of Trust Property; Organizational
------------------------------------------------------
Expenses.
--------
The Trustees acknowledge receipt from the Depositor in connection with
the Original Trust Agreement of the sum of $10, which constituted the initial
Trust Property. The Depositor shall pay organizational expenses of the Trust as
they arise or shall, upon request of any Trustee, promptly reimburse such
Trustee for any such expenses paid by such Trustee. The Depositor shall make no
claim upon the Trust Property for the payment of such expenses.
Section 2.4. Issuance of the Preferred Securities.
------------------------------------
On March 16, 1999, the Depositor, on behalf of the Trust and pursuant
to the Original Trust Agreement, executed and delivered the Underwriting
Agreement. Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrative Trustee, on behalf of the Trust, shall execute in
accordance with Section 5.2 and deliver to the Underwriters named in the
Underwriting Agreement, Preferred Securities Certificates, registered in the
name of the nominee of the initial Clearing Agency, representing 8,000,000
Preferred Securities having an aggregate Liquidation Amount of $200,000,000,
against receipt of such aggregate purchase price of such Preferred Securities of
$200,000,000, which amount the Administrative Trustee shall promptly deliver to
the Property Trustee.
Section 2.5. Issuance of the Common Securities; Subscription and
---------------------------------------------------
Purchase of Debentures.
----------------------
Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrative Trustee, on behalf of the Trust, shall execute in
accordance with Section 5.2 and deliver to the Depositor Common Securities
Certificates, registered in the name of the Depositor, representing 248,000
Common Securities having an aggregate Liquidation Amount
<PAGE>
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of $25.00 (or $6,200,000 in the aggregate) against payment by the Depositor of
such amount. Contemporaneously therewith, an Administrative Trustee, on behalf
of the Trust, shall subscribe to and purchase from the Depositor Debentures,
registered in the name of the Trust and having an aggregate principal amount
equal to $206,200,000, and, in satisfaction of the purchase price for such
Debentures, the Property Trustee, on behalf of the Trust, shall deliver to the
Depositor the sum of $206,200,000.
Section 2.6. Declaration of Trust.
--------------------
The exclusive purposes and functions of the Trust are (a) to issue and
sell Trust Securities and use the proceeds from such sale to acquire the
Debentures, and (b) to engage in those activities necessary, convenient or
incidental thereto. The Depositor hereby appoints the Trustees as trustees of
the Trust, to have all the rights, powers and duties to the extent set forth
herein, and the Trustees hereby accept such appointment. The Property Trustee
hereby declares that it will hold the Trust property upon and subject to the
conditions set forth herein for the benefit of the Trust and the
Securityholders. The Administrative Trustees shall have all rights, powers and
duties set forth herein and in accordance with applicable law with respect to
accomplishing the purposes of the Trust. The Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities, of the Trustees set forth herein, except as
required by the Delaware Business Trust Act. The Delaware Trustee shall be one
of the Trustees of the Trust for the sole and limited purpose of fulfilling the
requirements of Section 3807(a) of the Delaware Business Trust Act.
Section 2.7. Authorization to Enter into Certain Transactions.
------------------------------------------------
(a) The Trustees shall conduct the affairs of the Trust in accordance
with the terms of this Trust Agreement. Subject to the limitations set forth in
paragraph (b) of this Section and Article VIII, and in accordance with the
following provisions (i) and (ii), the Administrative Trustees shall have the
authority to enter into all transactions and agreements determined by the
Trustees to be appropriate in exercising the authority granted to the Trustees
under this Trust Agreement, and to perform all acts in furtherance thereof,
including without limitation, the following:
(i) As among the Trustees, each Administrative Trustee shall have
the power and authority to act on behalf of the Trust with respect to the
following matters:
(A) the issuance and sale of the Trust Securities;
(B) to acquire the Debentures with the proceeds of the sale of
the Trust Securities; provided, however, that the Administrative
Trustees shall
<PAGE>
-13-
cause legal title to the Debentures to be held of record in the name
of the Property Trustee for the benefit of the Holders of the
Preferred Securities and the Holders of the Common Securities;
(C) execution of the Trust Securities in accordance with this Trust
Agreement;
(D) the negotiation of the terms, and execution and delivery, for
and on behalf of the Trust, of the Underwriting Agreement providing
for the sale of the Preferred Securities;
(E) to cause the Trust to enter into, and to execute, deliver and
perform on behalf of the Trust, the Certificate Depository Agreement
and such other agreements as may be necessary or desirable in
connection with the purposes and function of the Trust;
(F) assisting in the registration of the Preferred Securities under
the Securities Act of 1933, as amended, and under state securities or
blue sky laws, and the qualification of this Trust Agreement as a
trust indenture under the Trust Indenture Act;
(G) assisting in the listing of the Preferred Securities upon such
securities exchange or exchanges as shall be determined by the
Depositor and the registration of the Preferred Securities under the
Securities Exchange Act of 1934, as amended, and the preparation and
filing of all periodic and other reports and other documents pursuant
to the foregoing;
(H) the sending of notices (other than notices of default) and
other information regarding the Trust Securities and the Debentures to
the Securityholders in accordance with this Trust Agreement;
(I) the appointment of a Paying Agent, authenticating agent and
Securities Registrar in accordance with this Trust Agreement;
(J) registering transfer of the Trust Securities in accordance with
this Trust Agreement;
(K) to the extent provided in this Trust Agreement, the winding up
of the affairs of and liquidation of the Trust and the preparation,
execution and filing of the certificate of cancellation with the
Secretary of State of the State of Delaware;
<PAGE>
-14-
(L) unless otherwise required by the Trust Indenture Act, to
execute on behalf of the Trust (either acting alone or together with
any or all of the Administrative Trustees) any documents that the
Administrative Trustees have the power to execute pursuant to this
Trust Agreement; and
(M) the taking of any action incidental to the foregoing as the
Trustees may from time to time determine is necessary or advisable to
give effect to the terms of this Trust Agreement for the benefit of
the Securityholders (without consideration of the effect of any such
action on any particular Securityholder).
(ii) As among the Trustees, the Property Trustee shall have the
power, duty and authority to act on behalf of the Trust with respect to the
following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any other payments
made in respect of the Debentures in the Payment Account;
(D) the distribution of amounts owed to the Securityholders in
respect of the Trust Securities;
(E) the exercise of all of the rights, powers and privileges of a
holder of the Debentures;
(F) the sending of notices of default and other information
regarding the Trust Securities and the Debentures to the
Securityholders in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with the
terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the winding
up of the affairs of and liquidation of the Trust and the preparation,
execution and filing of the certificate of cancellation with the
Secretary of State of the State of Delaware;
(I) after an event of Default the taking of any action incidental
to the foregoing as the Property Trustee may from time to time
determine is necessary or advisable to give effect to the terms of
this Trust Agreement and
<PAGE>
-15-
protect and conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of any such
action on any particular Securityholder);
(J) registering transfers of the Trust Securities in accordance
with this Trust Agreement;
(K) to engage in such Ministerial Activities as shall be
necessary, appropriate, convenient or incidental to effect the
repayment of the Preferred Securities and the Common Securities to the
extent the Debentures mature or are redeemed; and
(L) except as otherwise provided in this Section 2.7(a)(ii), the
Property Trustee shall have none of the duties, liabilities, powers or
the authority of the Administrative Trustees set forth in Section
2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or
the Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustees shall not cause the Trust to (i) acquire
any investments or engage in any activities not authorized by this Trust
Agreement, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or
otherwise dispose of any of the Trust Property or interests therein, including
to Securityholders, except as expressly provided herein, (iii) take any action
that would cause the Trust to fail or cease to qualify as a "grantor trust" for
United States Federal income tax purposes, (iv) incur any indebtedness for
borrowed money or issue any other debt or (v) take or consent to any action that
would result in the placement of a Lien on any of the Trust Property. The
Administrative Trustees shall defend all claims and demands of all Persons at
any time claiming any Lien on any of the Trust Property adverse to the interest
of the Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred
Securities, the Depositor shall have the right and responsibility to assist the
Trust with respect to, or effect on behalf of the Trust, the following (and any
actions taken by the Depositor in furtherance of the following prior to the date
of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Trust with the Commission
and the execution on behalf of the Trust of a registration statement on the
appropriate form in relation to the Preferred Securities, including any
amendments thereto;
<PAGE>
-16-
(ii) the determination of the States in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and the determination of any and all such acts, other than
actions which must be taken by or on behalf of the Trust, and the advice to
the Trustees of actions they must take on behalf of the Trust, and the
preparation for execution and filing of any documents to be executed and
filed by the Trust or on behalf of the Trust, as the Depositor deems
necessary or advisable in order to comply with the applicable laws of any
such States;
(iii) the preparation for filing by the Trust and execution on
behalf of the Trust of an application to the New York Stock Exchange or any
other national stock exchange or the Nasdaq National Market for listing
upon notice of issuance of any Preferred Securities;
(iv) the preparation for filing by the Trust with the Commission
and the execution on behalf of the Trust of a registration statement on
Form 8-A relating to the registration of the Preferred Securities under
Section 12(b) or 12(g) of the Exchange Act, including any amendments
thereto;
(v) the negotiation of the terms of, and the execution and
delivery of, the Underwriting Agreement providing for the sale of the
Preferred Securities; and
(vi) the taking of any other actions deemed by the Depositor
necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs of
the Trust and to operate the Trust so that the Trust will not be deemed to be an
"investment company" required to be registered under the 1940 Act, or taxed as a
corporation for United States Federal income tax purposes and so that the
Debentures will be treated as indebtedness of the Depositor for United States
Federal income tax purposes. In this connection, the Depositor and the
Administrative Trustees are authorized to take any action, not inconsistent with
applicable law, the Certificate of Trust or this Trust Agreement, that each of
the Depositor and the Administrative Trustees determines in their discretion to
be necessary or desirable for such purposes, as long as such action does not
adversely affect in any material respect the interests of the holders of the
Preferred Securities.
Section 2.8. Assets of Trust.
---------------
The assets of the Trust shall consist of the Trust Property.
<PAGE>
-17-
Section 2.9. Title to Trust Property.
-----------------------
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee for the benefit of the Trust and the Securityholders in
accordance with this Trust Agreement.
ARTICLE III
PAYMENT ACCOUNT
Section 3.1. Payment Account.
---------------
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and any agent of the
Property Trustee shall have exclusive control and sole right of withdrawal with
respect to the Payment Account for the purpose of making deposits in and
withdrawals from the Payment Account in accordance with this Trust Agreement.
All monies and other property deposited or held from time to time in the Payment
Account shall be held by the Property Trustee in the Payment Account for the
exclusive benefit of the Securityholders and for distribution as herein
provided, including (and subject to) any priority of payments provided for
herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal of or interest on, and any
other payments or proceeds with respect to, the Debentures. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV
CERTAIN TERMS OF THE TRUST SECURITIES
Section 4.1. Distributions.
-------------
(a) Distributions on the Trust Securities shall be cumulative, and
will accumulate whether or not there are funds of the Trust available for the
payment of Distributions. Distributions shall accrue from March 25, 1999 and
shall be payable quarterly in arrears on March 31, June 30, September 30 and
December 31 of each year, commencing on June 30, 1999 except as provided below.
The Depositor has the right under the Indenture to defer payments of interest by
extending the interest payment period from time to time on the
<PAGE>
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Debentures for a period not extending, in the aggregate, beyond the maturity
date of the Debentures (each, an "Extension Period"). During such Extension
----------------
Period, no interest shall be due and payable on the Debentures. As a consequence
of such deferral, Distributions will also be deferred. Despite such deferral,
quarterly Distributions will continue to accumulate, compounded quarterly during
any such Extension Period (to the extent permitted by applicable law). Payments
of accrued Distributions will be payable to Holders as they appear on the books
and records of the Trust on the first record date after the end of the Extension
Period. Upon the termination of any Extension Period and the payment of all
amounts then due, the Depositor may commence a new Extension Period; provided
that such Extension Period together with all such previous and further
extensions thereof may not extend beyond the maturity date of the Debentures. If
any date on which a Distribution is otherwise payable on the Trust Securities is
not a Business Day, then the payment of such Distribution shall be made on the
next succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay) except that, if such Business Day is in
the next succeeding calendar year, payment of such Distribution shall be made on
the immediately preceding Business Day, in each case with the same force and
effect as if made on such date (each date on which distributions are payable in
accordance with this Section 4.1(a), a "Distribution Date").
-----------------
(b) The Trust Securities represent undivided beneficial ownership
interests in the Trust Property, and, as a practical matter, the Distributions
on the Trust Securities shall be payable at a rate of 6.85% per annum (the
"Coupon Rate") of the Liquidation Amount of the Trust Securities. Distributions
-----------
in arrears for more than one quarter will accumulate and compound at the Coupon
Rate. The term "Distributions" as used in this Trust Agreement includes such
cash distributions and any such accumulated amounts that are payable unless
otherwise stated. A Distribution is payable only to the extent that payments
are made in respect of the Debentures held by the Property Trustee and to the
extent the Property Trustee has funds available therefor. The amount of
Distributions payable for any full period shall be computed on the basis of a
360-day year of twelve 30-day months.
(c) Distributions on the Trust Securities shall be made by the
Property Trustee from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Trust has funds then on hand and
available in the Payment Account for the payment of such Distributions.
(d) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on the
Securities Register for the Trust Securities on the relevant record date, which
shall be one Business Day prior to such Distribution Date; provided, however,
that in the event that the Preferred Securities do not remain in book-entry-only
form, the relevant record date shall be the date 15 days prior to the relevant
Distribution Date.
<PAGE>
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Section 4.2. Redemption.
----------
(a) On each Debenture Redemption Date and on the stated maturity of
the Debentures, the Trust will be required to redeem a Like Amount of Trust
Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder's address appearing in the Security Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the total Liquidation Amount of the
particular Trust Securities to be redeemed; and
(v) that on the Redemption Date the Redemption Price will become
due and payable upon each such Trust Security to be redeemed and that
distributions thereon will cease to accrue on and after said date.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Debentures. Redemptions of the Trust Securities shall be made and
the Redemption Price shall be payable on each Redemption Date only to the extent
that the Trust has funds then on hand and available in the Payment Account for
the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect of
any Trust Securities, then, by 12:00 noon, New York City time, on the Redemption
Date, subject to Section 4.2(c), the Property Trustee will, so long as the Trust
Securities are in book-entry-only form, irrevocably deposit with the Clearing
Agency for the Trust Securities funds sufficient to pay the applicable
Redemption Price and will give such Clearing Agency irrevocable instructions and
authority to pay the Redemption Price to the holders thereof. If the Trust
Securities are no longer in book-entry-only form, the Property Trustee, subject
to Section 4.2(c), will irrevocably deposit with the Paying Agent funds
sufficient to pay the applicable Redemption Price and will give the Paying Agent
irrevocable instructions and authority to pay the Redemption Price to the
Holders thereof upon surrender of their Trust Securities Certificates.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption
<PAGE>
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Date for any Trust Securities called for redemption shall be payable to the
Holders of such Trust Securities as they appear on the Register for the Trust
Securities on the relevant record dates for the related Distribution Dates. If
notice of redemption shall have been given and funds deposited as required, then
immediately prior to the close of business on the date of such deposit, all
rights of Securityholders holding Trust Securities so called for redemption will
cease, except the right of such Securityholders to receive the Redemption Price
and any Distribution payable on or prior to the Redemption Date, but without
interest, and such Securities will cease to be outstanding. In the event that
any date on which any Redemption Price is payable is not a Business Day, then
payment of the Redemption Price payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay), except that, if such Business Day falls in the
next calendar year, such payment will be made on the immediately preceding
Business Day, in each case, with the same force and effect as if made on such
date. In the event that payment of the Redemption Price in respect of any Trust
Securities called for redemption is improperly withheld or refused and not paid
either by the Trust or by the Depositor pursuant to the Guarantee, Distributions
on such Trust Securities will continue to accrue, at the then applicable rate,
from the Redemption Date originally established by the Trust for such Trust
Securities to the date such Redemption Price is actually paid, in which case the
actual payment date will be the date fixed for redemption for purposes of
calculating the Redemption Price.
(e) Payment of the Redemption Price on the Trust Securities shall be
made to the recordholders thereof as they appear on the Securities Register for
the Trust Securities on the relevant record date, which shall be one Business
Day prior to the relevant Redemption Date; provided, however, that in the event
that the Preferred Securities do not remain in book-entry-only form, the
relevant record date shall be the date 15 days prior to the relevant Redemption
Date.
(f) Subject to Section 4.3(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated on a
pro rata basis (based on Liquidation Amounts) among the Common Securities and
the Preferred Securities. The particular Preferred Securities to be redeemed
shall be selected on a pro rata basis (based upon Liquidation Amounts) not more
than 60 days prior to the Redemption Date by the Property Trustee from the
Outstanding Preferred Securities not previously called for redemption which may
provide for the selection for redemption of portions (equal to $25 or an
integral multiple of $25 in excess thereof) of the Liquidation Amount of
Preferred Securities of a denomination larger than $25. The Property Trustee
shall promptly notify the Security Registrar in writing of the Preferred
Securities selected for redemption and, in the case of any Preferred Securities
selected for partial redemption, the Liquidation Amount thereof to be redeemed.
For all purposes of this Trust Agreement, unless the context otherwise requires,
all provisions relating to the re-
<PAGE>
-21-
redemption of Preferred Securities shall relate, in the case of any Preferred
Securities redeemed or to be redeemed only in part, to the portion of the
Liquidation Amount of Preferred Securities that has been or is to be redeemed.
Section 4.3. Subordination of Common Securities.
----------------------------------
(a) Payment of Distributions on, and the Redemption Price of, the
Trust Securities, as applicable, shall be made, subject to Section 4.2(f), pro
rata among the Common Securities and the Preferred Securities based on the
Liquidation Amount of the Trust Securities; provided, however, that if on any
Distribution Date or Redemption Date any Event of Default resulting from a
Debenture Event of Default shall have occurred and be continuing, no payment of
any Distribution on, or Redemption Price of, any Common Security, and no other
payment on account of the redemption, liquidation or other acquisition of Common
Securities, shall be made unless payment in full in cash of all accumulated and
unpaid Distributions on all Outstanding Preferred Securities for all
Distribution periods terminating on or prior thereto, or in the case of payment
of the Redemption Price the full amount of such Redemption Price on all
Outstanding Preferred Securities, shall have been made or provided for, and all
funds immediately available to the Property Trustee shall first be applied to
the payment in full in cash of all Distributions on, or the Redemption Price of,
Preferred Securities then due and payable.
(b) In the case of the occurrence of any Event of Default resulting
from any Debenture Event of Default, the Holder of Common Securities will be
deemed to have waived any right to act with respect to any such Event of Default
under this Trust Agreement until the effect of all such Events of Default with
respect to the Preferred Securities have been cured, waived or otherwise
eliminated. Until any such Event of Default under this Trust Agreement with
respect to the Preferred Securities has been so cured, waived or otherwise
eliminated, the Property Trustee shall act solely on behalf of the Holders of
the Preferred Securities and not the Holder of the Common Securities, and only
the Holders of the Preferred Securities will have the right to direct the
Property Trustee to act on their behalf.
Section 4.4. Payment Procedures.
------------------
Payments of Distributions in respect of the Preferred Securities shall
be made by check mailed to the address of the Person entitled thereto as such
address shall appear on the Securities Register or, if the Preferred Securities
are held by a Clearing Agency, such Distributions shall be made to the Clearing
Agency in immediately available funds, which shall credit the relevant Persons'
accounts at such Clearing Agency on the applicable distribution dates. Payments
in respect of the Common Securities shall be made in such manner as shall be
mutually agreed between the Property Trustee and the Common Securityholder.
<PAGE>
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Section 4.5. Tax Returns and Reports.
-----------------------
The Administrative Trustees shall prepare (or cause to be prepared),
at the Depositor's expense, and file all United States Federal, state and local
tax and information returns and reports required to be filed by or in respect of
the Trust. In this regard, the Administrative Trustees shall (a) prepare and
file (or cause to be prepared and filed) the appropriate Internal Revenue
Service form required to be filed in respect of the Trust in each taxable year
of the Trust and (b) prepare and furnish (or cause to be prepared and furnished)
to each Securityholder the appropriate Internal Revenue Service form required to
be provided or the information required to be provided on such form. The
Administrative Trustees shall provide the Depositor and the Property Trustee
with a copy of all such returns and reports promptly after such filing or
furnishing. The Trustees shall comply with United States Federal withholding
and backup withholding tax laws and information reporting requirements with
respect to any payments to Securityholders under the Trust Securities.
Section 4.6. Payments under Indenture.
------------------------
Any amount payable hereunder to any Holder of Preferred Securities
(and any Owner with respect thereto) shall be reduced by the amount of any
corresponding payment such Holder (and Owner) has directly received pursuant to
Section 6.06 of the Indenture.
ARTICLE V
TRUST SECURITIES CERTIFICATES
Section 5.1. Initial Ownership.
-----------------
Upon the creation of the Trust and the contribution by the Depositor
pursuant to Section 2.3 and until the issuance of the Trust Securities, and at
any time during which no Trust Securities are outstanding, the Depositor shall
be the sole beneficial owner of the Trust.
Section 5.2. The Trust Securities Certificates.
---------------------------------
The Preferred Securities Certificates shall be issued in minimum
denominations of $25 Liquidation Amount and integral multiples of $25 in excess
thereof, and the Common Securities Certificates shall be issued in denominations
of $25 Liquidation Amount and integral multiples of $25 in excess thereof. The
Trust Securities Certificates shall be executed on behalf of the Trust by manual
signature of at least one Administrative Trustee. Trust Securities Certificates
bearing the manual signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the Trust,
shall
<PAGE>
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be validly issued and entitled to the benefits of this Trust Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the delivery of such Trust Securities Certificates or did
not hold such offices at the date of delivery of such Trust Securities
Certificates. A transferee of a Trust Securities Certificate shall become a
Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Sections 5.4, 5.11
and 5.13.
Section 5.3. Execution and Delivery of Trust Securities
Certificates.
------------
At each Closing Date, the Administrative Trustees shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.4 and 2.5, to be executed on behalf of the Trust and delivered to or
upon the written order of the Depositor, signed by its Chairman or a Vice
Chairman of the Board, President or a Vice President, and by its Treasurer,
Assistant Treasurer, Comptroller, an Assistant Comptroller, Secretary or an
Assistant Secretary without further corporate action by the Depositor, in
authorized denominations.
Section 5.4. Registration of Transfer and Exchange of
Preferred Securities Certificates.
---------------------------------
The Depositor shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 5.8, a register or registers for the purpose of
registering Trust Securities Certificates and transfers and exchanges of
Preferred Securities Certificates (the "Securities Register") in which, the
-------------------
registrar designated by the Depositor (the "Securities Registrar"), subject to
--------------------
such reasonable regulations as it may prescribe, shall provide for the
registration of Preferred Securities Certificates and Common Securities
Certificates (subject to Section 5.10 in the case of the Common Securities
Certificates) and registration of transfers and exchanges of Preferred
Securities Certificates as herein provided. The Bank shall be the initial
Securities Registrar.
Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to Section
5.8, the Administrative Trustees or any one of them shall execute and deliver,
in the name of the designated transferee or transferees, one or more new
Preferred Securities Certificates in authorized denominations of a like
aggregate Liquidation Amount dated the date of execution by such Administrative
Trustee or Trustees.
The Securities Registrar shall not be required to register the
transfer of any Preferred Securities that have been called for redemption. At
the option of a Holder, Preferred
<PAGE>
-24-
Securities Certificates may be exchanged for other Preferred Securities
Certificates in authorized denominations of the same class and of a like
aggregate Liquidation Amount upon surrender of the Preferred Securities
Certificates to be exchanged at the office or agency maintained pursuant to
Section 5.8.
Every Preferred Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Property Trustee and the
Securities Registrar duly executed by the Holder or his attorney duly authorized
in writing. Each Preferred Securities Certificate surrendered for registration
of transfer or exchange shall be cancelled and subsequently disposed of by the
Property Trustee in accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Securities Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Preferred
Securities Certificates.
Section 5.5. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates.
-----------------------
If (a) any mutilated Trust Securities Certificate shall be surrendered
to the Securities Registrar, or if the Securities Registrar shall receive
evidence to its satisfaction of the destruction, loss or theft of any Trust
Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Administrative Trustees such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Trust Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustees, or any one of them, on behalf of the
Trust shall execute and make available for delivery, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Trust Securities Certificate, a
new Trust Securities Certificate of like class, tenor and denomination. In
connection with the issuance of any new Trust Securities Certificate under this
Section, the Administrative Trustees or the Securities Registrar may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate Trust Securities
Certificate issued pursuant to this Section shall constitute conclusive evidence
of an undivided beneficial ownership interest in the assets of the Trust, as if
originally issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
Section 5.6. Persons Deemed Securityholders.
------------------------------
The Administrative Trustees or the Securities Registrar shall treat
the Person in whose name any Trust Securities Certificate shall be registered in
the Securities Register as
<PAGE>
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the owner of such Trust Securities Certificate for the purpose of receiving
distributions and for all other purposes whatsoever, and neither the Trustees
nor the Securities Registrar shall be bound by any notice to the contrary.
Section 5.7. Access to List of Securityholders' Names
and Addresses.
--------------
At any time when the Property Trustee is not also acting as the
Securities Registrar, the Administrative Trustees or the Depositor shall furnish
or cause to be furnished to the Property Trustee (a) semi-annually on or before
January 15 or July 15 in each year, a list, in such form as the Property Trustee
may reasonably require, of the names and addresses of the Securityholders as of
the most recent regular record date (as provided in Section 4.1(d)) and (b)
promptly after receipt by any Administrative Trustee or the Depositor of a
request therefor from the Property Trustee, such other information as the
Property Trustee may reasonably require in order to enable the Property Trustee
to discharge its obligations under this Trust Agreement, in each case to the
extent such information is in the possession or control of the Administrative
Trustees or the Depositor and is not identical to a previously supplied list or
has not otherwise been received by the Property Trustee in its capacity as
Securities Registrar. The rights of Securityholders to communicate with other
Securityholders with respect to their rights under this Trust Agreement or under
the Trust Securities, and the corresponding rights of the Trustee shall be as
provided in the Trust Indenture Act. Each Holder, by receiving and holding a
Trust Securities Certificate, and each Owner shall be deemed to have agreed not
to hold the Depositor, the Property Trustee or the Administrative Trustees
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
Section 5.8. Maintenance of Office or Agency.
-------------------------------
The Administrative Trustees shall maintain an office or offices or
agency or agencies where Preferred Securities Certificates may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Trustees in respect of the Trust Securities Certificates may be served.
The Administrative Trustees initially designate Wisconsin Energy Corporation,
231 West Michigan Street, Milwaukee, Wisconsin 53201, Attn: Chief Financial
Officer, as its principal corporate trust office for such purposes. The
Administrative Trustees shall give prompt written notice to the Depositor and to
the Securityholder of any change in the location of the Securities Register or
any such office or agency.
Section 5.9. Appointment of Paying Agent.
---------------------------
The Paying Agent shall make distributions to Securityholders from the
Payment Account and shall report the amounts of such distributions to the
Property Trustee and
<PAGE>
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the Administrative Trustees. Any Paying Agent shall have the revocable power to
withdraw funds from the Payment Account for the purpose of making the
distributions referred to above. The Administrative Trustees may revoke such
power and remove the Paying Agent if such Trustees determine in their sole
discretion that the Paying Agent shall have failed to perform its obligations
under this Trust Agreement in any material respect. The Paying Agent shall
initially be the Bank. The Paying Agent may choose any co-paying agent that is
acceptable to the Administrative Trustees and the Depositor. Any Person acting
as Paying Agent shall be permitted to resign as Paying Agent upon 30 days'
written notice to the Administrative Trustees, the Property Trustee and the
Depositor. In the event that the Bank shall no longer be the Paying Agent or a
successor Paying Agent shall resign or its authority to act be revoked, the
Administrative Trustees shall appoint a successor that is acceptable to the
Property Trustee and the Depositor to act as Paying Agent (which shall be a bank
or trust company). The Administrative Trustees shall cause such successor Paying
Agent or any additional Paying Agent appointed by the Administrative Trustees to
execute and deliver to the Trustees an instrument in which such successor Paying
Agent or additional Paying Agent shall agree with the Trustees that as Paying
Agent, such successor Paying Agent or additional Paying Agent will hold all
sums, if any, held by it for payment to the Securityholders in trust for the
benefit of the Securityholders entitled thereto until such sums shall be paid to
such Securityholders. The Paying Agent shall return all unclaimed funds to the
Property Trustee and upon removal of a Paying Agent such Paying Agent shall also
return all funds in its possession to the Property Trustee. The provisions of
Sections 8.1, 8.3 and 8.6 herein shall apply to the Bank also in its role as
Paying Agent, for so long as the Bank shall act as Paying Agent and, to the
extent applicable, to any other paying agent appointed hereunder. Any reference
in this Agreement to the Paying Agent shall include any co-paying agent unless
the context requires otherwise.
Section 5.10. Ownership of Common Securities by
Depositor.
----------
At each Closing Date, the Depositor shall acquire and retain
beneficial and record ownership of the Common Securities. To the fullest extent
permitted by law, other than transactions permitted by Section 5.01of the
Indenture, any attempted transfer of the Common Securities shall be void. The
Administrative Trustees shall cause each Common Securities Certificate issued to
the Depositor to contain a legend stating "THIS CERTIFICATE IS NOT TRANSFERABLE
OTHER THAN IN ACCORDANCE WITH THE TRUST AGREEMENT (AS DEFINED BELOW)" .
<PAGE>
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Section 5.11. Book-Entry Preferred Securities Certificates;
Common Securities Certificate.
-----------------------------
(a) The Preferred Securities Certificates, upon original issuance,
will be issued in the form of a typewritten Preferred Securities Certificate or
Certificates representing Book-Entry Preferred Securities Certificates, to be
delivered to The Depository Trust Company, the initial Clearing Agency, by, or
on behalf of, the Trust. Such Preferred Securities Certificate or Certificates
shall initially be registered on the Securities Register in the name of Cede &
Co., the nominee of the initial Clearing Agency, and no beneficial owner will
receive a Definitive Preferred Securities Certificate representing such
beneficial owner's interest in such Preferred Securities, except as provided in
Section 5.13. Unless and until Definitive Preferred Securities Certificates
have been issued to beneficial owners pursuant to Section 5.13:
(i) the provisions of this Section 5.11(a) shall be in full force
and effect;
(ii) the Securities Registrar, the Paying Agent and the Trustees
shall be entitled to deal with the Clearing Agency for all purposes of this
Trust Agreement relating to the Book-Entry Preferred Securities
Certificates (including the payment of the Liquidation Amount of and
Distributions on the Book-Entry Preferred Securities Certificate and the
giving of instructions or directions to Owners of Book-Entry Preferred
Securities) as the sole Holder of Book-Entry Preferred Securities and shall
have no obligations to the Owners thereof;
(iii) to the extent that the provisions of this Section 5.11
conflict with any other provisions of this Trust Agreement, the provisions
of this Section 5.11 shall control; and
(iv) the rights of the Owners of the Book-Entry Preferred
Securities Certificates shall be exercised only through the Clearing Agency
and shall be limited to those established by law and agreements between
such Owners and the Clearing Agency and/or the Clearing Agency
Participants. Pursuant to the Certificate Depository Agreement, unless and
until Definitive Preferred Securities Certificates are issued pursuant to
Section 5.13, the initial Clearing Agency will make book-entry transfers
among the Clearing Agency Participants and receive and transmit payments on
the Preferred Securities to such Clearing Agency Participants.
(b) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
<PAGE>
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Section 5.12. Notices to Clearing Agency.
--------------------------
To the extent that a notice or other communication to the Owners is
required under this Trust Agreement, unless and until Definitive Preferred
Securities Certificates shall have been issued to Owners pursuant to Section
5.13, the Trustees shall give all such notices and communications specified
herein to be given to Owners to the Clearing Agency, and shall have no
obligations to the Owners.
Section 5.13. Definitive Preferred Securities Certificates.
--------------------------------------------
If (a) the Depositor advises the Trustees in writing that the Clearing
Agency is no longer willing or able to properly discharge its responsibilities
with respect to the Preferred Securities Certificates, and the Depositor is
unable to locate a qualified successor, (b) the Depositor at its option advises
the Trustees in writing that it elects to terminate the book-entry system
through the Clearing Agency or (c) after the occurrence of a Debenture Event of
Default, Owners of Preferred Securities Certificates representing beneficial
ownership interests aggregating at least a majority of the Liquidation Amount
advise the Property Trustee in writing that the continuation of a book-entry
system through the Clearing Agency is no longer in the best interest of the
Owners of Preferred Securities Certificates, then the Property Trustee shall
notify the Clearing Agency and the Clearing Agency shall notify all Owners of
Preferred Securities Certificates and the other Trustees of the occurrence of
any such event and of the availability of the Definitive Preferred Securities
Certificates to Owners of such class or classes, as applicable, requesting the
same. Upon surrender to the Property Trustee of the typewritten Preferred
Securities Certificate or Certificates representing the Book-Entry Preferred
Securities Certificates by the Clearing Agency, accompanied by registration
instructions, the Administrative Trustees, or any one of them, shall execute the
Definitive Preferred Securities Certificates in accordance with the instructions
of the Clearing Agency. Neither the Securities Registrar nor the Trustees shall
be liable for any delay in delivery of such instructions and may conclusively
rely on, and shall be protected in relying on, such instructions. Upon the
issuance of Definitive Preferred Securities Certificates, the Trustees shall
recognize the Holders of the Definitive Preferred Securities Certificates as
Securityholders. The Definitive Preferred Securities Certificates shall be
printed, lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to the Administrative Trustees, as evidenced by the
execution thereof by the Administrative Trustees or any one of them.
Section 5.14. Rights of Securityholders.
-------------------------
(a) The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 2.9, and
the Securityholders shall not have any right or title therein other than the
undivided beneficial ownership interests in the assets of the Trust conferred by
their Trust Securities and they shall have no right to call
<PAGE>
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for any partition or division of property, profits or rights of the Trust except
as described below. The Trust Securities shall be personal property giving only
the rights specifically set forth therein and in this Trust Agreement. By
acceptance of a beneficial interest in the Trust Securities, Holders agree to
treat the Debentures as indebtedness for all United States tax purposes. The
Trust Securities shall have no preemptive or similar rights and when issued and
delivered to Securityholders against payment of the purchase price therefor will
be fully paid and nonassessable by the Trust. The Holders of the Trust
Securities, in their capacities as such, shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware.
(b) For so long as any Preferred Securities remain Outstanding, if,
upon a Debenture Event of Default, the Indenture Trustee fails or the holders of
not less than 25% in aggregate principal amount of the outstanding Debentures
fail to declare the principal of all of the Debentures to be immediately due and
payable, the Holders of at least 25% in aggregate Liquidation Amount of the
Preferred Securities then Outstanding shall have such right by a notice in
writing to the Depositor and the Indenture Trustee; and upon any such
declaration such principal amount of and the accrued interest on all of the
Debentures shall become immediately due and payable; provided that the payment
of principal and interest on such Debentures shall remain subordinated to the
extent provided in the Indenture. At any time after such a declaration of
acceleration with respect to the Debentures has been made and before a judgment
or decree for payment of the money due has been obtained by the Indenture
Trustee as in the Indenture provided, the Holders of a majority in Liquidation
Amount of the Preferred Securities, by written notice to the Property Trustee,
the Depositor and the Indenture Trustee, may rescind and annul such declaration
and its consequences if:
(i) the Depositor has paid or deposited with the Indenture Trustee
a sum sufficient to pay
(A) all overdue installments of interest on all of the
Debentures,
(B) the principal of (and premium, if any, on) any Debentures
which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Debentures,
and
(C) all sums paid or advanced by the Indenture Trustee under
the Indenture and the reasonable compensation, expenses, disbursements
and advances of the Indenture Trustee and the Property Trustee, their
agents and counsel; and
<PAGE>
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(ii) all Events of Default with respect to the Debentures, other
than the non-payment of the principal of the Debentures which has become
due solely by such acceleration, have been cured or waived as provided in
Section 8.01 of the Indenture.
The Holders of a majority in aggregate Liquidation Amount of the
Preferred Securities may, on behalf of the Holders of all the Preferred
Securities, waive any past default under the Indenture, except a default in the
payment of principal or interest (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and principal due
otherwise than by acceleration has been deposited with the Indenture Trustee) or
a default in respect of a covenant or provision which under the Indenture cannot
be modified or amended without the consent of the holder of each outstanding
Debenture. No such waiver or rescission shall affect any subsequent default or
impair any right consequent thereon. Upon receipt by the Property Trustee of
written notice declaring such an acceleration, or rescission and annulment
thereof, by Holders of the Preferred Securities all or part of which is
represented by Book-Entry Preferred Securities Certificates, a record date shall
be established for determining Holders of Outstanding Preferred Securities
entitled to join in such notice, which record date shall be at the close of
business on the day the Property Trustee receives such notice. The Holders on
such record date, or their duly designated proxies, and only such Persons, shall
be entitled to join in such notice, whether or not such Holders remain Holders
after such record date; provided, that, unless such declaration of acceleration,
--------
or rescission and annulment, as the case may be, shall have become effective by
virtue of the requisite percentage having joined in such notice prior to the day
which is 90 days after such record date, such notice of declaration of
acceleration, or rescission and annulment, as the case may be, shall
automatically and without further action by any Holder be canceled and of no
further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of
a Holder, from giving, after expiration of such 90-day period, a new written
notice of declaration of acceleration, or rescission and annulment thereof, as
the case may be, that is identical to a written notice which has been canceled
pursuant to the proviso to the preceding sentence, in which event a new record
date shall be established pursuant to the provisions of this Section 5.14(b).
(c) For so long as any Preferred Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Trust Agreement
and the Indenture, upon a Debenture Event of Default specified in Section
6.01(1) or 6.01(2) of the Indenture, any Holder of Preferred Securities shall
have the right to institute a proceeding directly against the Depositor,
pursuant to the Indenture, for enforcement of payment to such Holder of the
principal amount of or interest on Debentures having a principal amount equal to
the Liquidation Amount of the Preferred Securities of such Holder (a "Direct
------
Action"). In connection with any such Direct Action, the Holder of the Common
- ------
Securities will be subrogated to the rights of any Holder of the Preferred
Securities to the extent of any payment made by the Depositor to such Holder of
Preferred Securities as a result of such Direct Action. Except
<PAGE>
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as set forth in Section 5.14(b) and (c), the Holders of Preferred Securities
shall have no right to exercise directly any right or remedy available to the
holders of, or in respect of, the Debentures.
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
Section 6.1. Limitations on Voting Rights.
----------------------------
(a) Except as provided in this Section, in Sections 5.14, 8.10 and
10.2 and in the Indenture and as otherwise required by law, no Holder of
Preferred Securities shall have any right to vote or in any manner otherwise
control the administration, operation and management of the Trust or the
obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Trust Securities Certificates, be construed so as
to constitute the Securityholders from time to time as partners or members of an
association.
(b) So long as any Debentures are held by the Property Trustee, the
Trustees shall not (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Indenture Trustee, or executing any
trust or power conferred on the Indenture Trustee with respect to such
Debentures, (ii) waive any past default which is waivable under Section 6.04 of
the Indenture, (iii) exercise any right to rescind or annul a declaration that
the principal of all the Debentures shall be due and payable or (iv) consent to
any amendment or modification under Section 10.02 or termination of the
Indenture or any amendment, modification or termination of the Debentures, where
such consent shall be required, without, in each case, obtaining the prior
approval of the Holders of at least a majority in Liquidation Amount of all
Outstanding Preferred Securities; provided, however, that where a consent under
the Indenture would require the consent of each Holder of Debentures affected
thereby, no such consent shall be given by the Property Trustee without the
prior written consent of each Holder of Preferred Securities. The Trustees
shall not revoke any action previously authorized or approved by a vote of the
Holders of Preferred Securities, except by a subsequent vote of the Holders of
Preferred Securities. The Property Trustee shall notify all Holders of the
Preferred Securities of any notice of default received from the Indenture
Trustee with respect to the Debentures. In addition to obtaining the foregoing
approvals of the Holders of the Preferred Securities, prior to taking any of the
foregoing actions, the Trustees shall, at the expense of the Depositor, obtain
an Opinion of Counsel experienced in such matters to the effect that the Trust
will not be classified as an association taxable as a corporation for United
States Federal income tax purposes on account of such action.
<PAGE>
-32-
(c) If any proposed amendment to the Trust Agreement provides for, or
the Trustees otherwise propose to effect, (i) any action that would adversely
affect in any material respect the powers, preferences or special rights of the
Preferred Securities, whether by way of amendment to the Trust Agreement or
otherwise, or (ii) the dissolution, winding-up or termination of the Trust,
other than pursuant to the terms of this Trust Agreement, then the Holders of
Outstanding Preferred Securities as a class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of the Holders of at least a majority in Liquidation
Amount of the Outstanding Preferred Securities. Notwithstanding any other
provision of this Trust Agreement, no amendment to this Trust Agreement may be
made if, as a result of such amendment, the Trust would be classified as an
association taxable as a corporation for United States Federal income tax
purposes.
Section 6.2. Notice of Meetings.
------------------
Notice of all meetings of the Preferred Securityholders, stating the
time, place and purpose of the meeting, shall be given by the Property Trustee
pursuant to Section 10.8 to each Preferred Securityholder of record, at his
registered address, at least 15 days and not more than 90 days before the
meeting. At any such meeting, any business properly before the meeting may be
so considered whether or not stated in the notice of the meeting. Any adjourned
meeting may be held as adjourned without further notice.
Section 6.3. Meetings of Preferred Securityholders.
-------------------------------------
No annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of Securityholders to
vote on any matter upon the written request of the Preferred Securityholders of
record of 25% in aggregate Liquidation Amount of the Preferred Securities (based
upon their Liquidation Amount) and the Administrative Trustees or the Property
Trustee may, at any time in their discretion, call a meeting of Preferred
Securityholders to vote on any matters as to which Preferred Securityholders are
entitled to vote.
Preferred Securityholders of record of 50% of the Outstanding
Preferred Securities (based upon their Liquidation Amount), present in person or
by proxy, shall constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by the
Preferred Securityholders of record present, in person or by proxy, holding a
majority of the Preferred Securities (based upon their Liquidation Amount) held
by the Preferred Securityholders of record present, either in person or by
proxy, at such meeting shall constitute the action of the Securityholders,
unless this Trust Agreement requires a greater number of affirmative votes.
<PAGE>
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Section 6.4. Voting Rights.
-------------
Securityholders shall be entitled to one vote for each $25 of
Liquidation Amount represented by their Trust Securities in respect of any
matter as to which such Securityholders are entitled to vote.
Section 6.5. Proxies, etc.
------------
At any meeting of Securityholders, any Securityholder entitled to vote
thereat may vote by proxy; provided that no proxy shall be voted at any meeting
--------
unless it shall have been placed on file with the Administrative Trustees, or
with such other officer or agent of the Trust as the Administrative Trustees may
direct, for verification prior to the time at which such vote shall be taken.
Pursuant to a resolution of the Property Trustee, proxies may be solicited in
the name of the Property Trustee or one or more officers of the Property
Trustee. Only Securityholders of record shall be entitled to vote. When Trust
Securities are held jointly by several persons, any one of them may vote at any
meeting in person or by proxy in respect of such Trust Securities, but if more
than one of them shall be present at such meeting in person or by proxy, and
such joint owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Trust Securities. A
proxy purporting to be executed by or on behalf of a Securityholder shall be
deemed valid unless challenged at or prior to its exercise, and the burden of
proving invalidity shall rest on the challenger. No proxy shall be valid more
than three years after its date of execution.
Section 6.6. Securityholder Action by Written Consent.
----------------------------------------
Any action which may be taken by Securityholders at a meeting may be
taken without a meeting if Securityholders holding a majority of all Outstanding
Trust Securities (based upon their Liquidation Amount) entitled to vote in
respect of such action (or such larger proportion thereof as shall be required
by any express provision of this Trust Agreement) shall consent to the action in
writing.
Section 6.7. Record Date for Voting and Other Purposes.
-----------------------------------------
For the purposes of determining the Securityholders who are entitled
to notice of and to vote at any meeting or by written consent, or to participate
in any distribution on the Trust Securities in respect of which a record date is
not otherwise provided for in this Trust Agreement, or for the purpose of any
other action, the Administrative Trustees may from time to time fix a date, not
more than 90 days prior to the date of any meeting of Securityholders or the
payment of a distribution or other action, as the case may be, as a record date
for the determination of the identity of the Securityholders of record for such
purposes.
<PAGE>
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Section 6.8. Acts of Securityholders.
-----------------------
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Trust Agreement to be given, made
or taken by Securityholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Securityholders in
person or by an agent duly appointed in writing; and, except as otherwise
expressly provided herein, such action shall become effective when such
instrument or instruments are delivered to an Administrative Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Securityholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Trust Agreement and (subject to Section 8.1) conclusive in favor
of the Trustees, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which any Trustee receiving the same deems sufficient.
The ownership of Preferred Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder to
take any action hereunder with regard to any particular Trust Security may do so
with regard to all or any part of the Liquidation Amount of such Trust Security
or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such liquidation amount.
<PAGE>
-35-
If any dispute shall arise between the Securityholders and the
Administrative Trustees or among such Securityholders or Trustees with respect
to the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Securityholder or
Trustee under this Article VI, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
Section 6.9. Inspection of Records.
---------------------
Upon reasonable notice to the Administrative Trustees and the Property
Trustee, the records of the Trust shall be open to inspection by Securityholders
during normal business hours for any purpose reasonably related to such
Securityholder's interest as a Securityholder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Section 7.1. Representations and Warranties of the
Property Trustee and the Delaware Trustee.
-----------------------------------------
The Property Trustee and the Delaware Trustee, each severally on
behalf of and as to itself, hereby represents and warrants for the benefit of
the Depositor and the Securityholders that:
(a) the Property Trustee is a national banking association duly
organized, validly existing and in good standing under the laws of the
United States;
(b) the Property Trustee meets the applicable eligibility requirements
set forth in Section 8.7, has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust
Agreement and has taken all necessary action to authorize the execution,
delivery and performance by it of this Trust Agreement;
(c) the Delaware Trustee is a Delaware corporation duly organized,
validly existing and in good standing in the State of Delaware;
(d) the Delaware Trustee meets the applicable eligibility requirements
set forth in Section 8.7, has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust
Agreement and has taken all neces-
<PAGE>
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sary action to authorize the execution, delivery and performance by it of
this Trust Agreement;
(e) this Trust Agreement has been duly authorized, executed and
delivered by the Property Trustee and the Delaware Trustee and constitutes
the valid and legally binding agreement of each of the Property Trustee and
the Delaware Trustee enforceable against each of them in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(f) the execution, delivery and performance of this Trust Agreement
have been duly authorized by all necessary corporate or other action on the
part of the Property Trustee and the Delaware Trustee and do not require
any approval of stockholders of the Property Trustee and the Delaware
Trustee and such execution, delivery and performance will not (i) violate
the charter or by-laws of the Property Trustee or the Delaware Trustee,
(ii) violate any provision of, or constitute, with or without notice or
lapse of time, a default under, or result in the creation or imposition of,
any Lien on any properties included in the Trust Property pursuant to the
provisions of, any indenture, mortgage, credit agreement, license or other
agreement or instrument to which the Property Trustee or the Delaware
Trustee is a party or by which it is bound, or (iii) violate any law,
governmental rule or regulation of the United States or the State of
Delaware, as the case may be, governing the corporate, banking, trust or
general powers of the Property Trustee or the Delaware Trustee (as
appropriate in context) or any order, judgment or decree applicable to the
Property Trustee or the Delaware Trustee;
(g) neither the authorization, execution or delivery by the Property
Trustee or the Delaware Trustee of this Trust Agreement nor the
consummation of any of the transactions by the Property Trustee or the
Delaware Trustee, as the case may be, contemplated herein or therein
requires the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with respect to any
governmental authority or agency under any existing Federal law governing
the banking, trust or general powers of the Property Trustee or the
Delaware Trustee (as appropriate in context) or under the laws of the
United States or the State of Delaware; and
(h) there are no proceedings pending or, to the best of each of the
Property Trustee's and the Delaware Trustee's knowledge, threatened against
or affecting the Property Trustee or the Delaware Trustee in any court or
before any governmental authority, agency or arbitration board or tribunal
which, individually or in the aggregate, would materially and adversely
affect the Trust or would question the right, power and authority of the
Property Trustee or the Delaware Trustee, as the case may
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be, to enter into or perform its obligations as one of the Trustees under
this Trust Agreement.
Section 7.2. Representations and Warranties of
Depositor.
---------------------------------
The Depositor hereby represents and warrants for the benefit of the
Securityholders that:
(a) the Trust Securities Certificates issued at each Closing Date on
behalf of the Trust have been duly authorized and will have been, duly and
validly executed, issued and delivered by the Trustees pursuant to the
terms and provisions of, and in accordance with the requirements of, this
Trust Agreement, and the Securityholders will be, as of each such date,
entitled to the benefits of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable by
the Trust (or the Trustees on behalf of the Trust) under the laws of the
State of Delaware or any political subdivision thereof in connection with
the execution, delivery and performance by the Property Trustee or the
Delaware Trustee, as the case may be, of this Trust Agreement.
ARTICLE VIII
THE TRUSTEES
Section 8.1. Certain Duties and Responsibilities.
-----------------------------------
(a) The duties and responsibilities of the Trustees shall be as
provided by this Trust Agreement and, in the case of the Property Trustee,
subject to the Trust Indenture Act. Notwithstanding the foregoing, no provision
of this Trust Agreement shall require the Trustees to expend or risk their own
funds or otherwise incur any financial liability in the performance of any of
their duties hereunder, or in the exercise of any of their rights or powers, if
they shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, every provision of this Trust
Agreement relating to the conduct or affecting the liability of or affording
protection to the Trustees shall be subject to the provisions of this Section.
Nothing in this Trust Agreement shall be construed to release the Property
Trustee from liability for its own gross negligent action, its own gross
negligent failure to act, or its own willful misconduct. To the extent that, at
law or in equity, an Administrative Trustee has duties (including fiduciary
duties) and liabilities relating thereto to the Trust or to
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the Securityholders, such Administrative Trustee shall not be liable to the
Trust or to any Securityholder for such Trustee's good faith reliance on the
provisions of this Trust Agreement. The provisions of this Trust Agreement, to
the extent that they restrict the duties and liabilities of the Administrative
Trustees otherwise existing at law or in equity, are agreed by the Depositor and
the Securityholders to replace such other duties and liabilities of the
Administrative Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the revenue and proceeds
from the Trust Property and only to the extent that there shall be sufficient
revenue or proceeds from the Trust Property to enable the Property Trustee or a
Paying Agent to make payments in accordance with the terms hereof. Each
Securityholder, by its acceptance of a Trust Security, agrees that it will look
solely to the revenue and proceeds from the Trust Property to the extent legally
available for distribution to it as herein provided and that the Trustees are
not personally liable to it for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust Security. This
Section 8.1(b) does not limit the liability of the Trustees expressly set forth
elsewhere in this Trust Agreement and, in the case of the Property Trustee, in
the Trust Indenture Act.
(c) No provision of this Trust Agreement shall be construed to relieve
the Property Trustee from liability for its own negligent action or its own
negligent failure to act, except that:
(i) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was negligent
in ascertaining the pertinent facts;
(ii) the Property 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 Liquidation
Amount of the Trust Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Property Trustee,
or exercising any trust or power conferred upon the Property Trustee under
this Trust Agreement;
(iii) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and the
Payment Account shall be to deal with such Property in similar manner as
the Property Trustee deals with similar property for its own account,
subject to the protections and limitations on liability afforded to the
Property Trustee under this Trust Agreement and the Trust Indenture Act;
<PAGE>
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(iv) the Property Trustee shall not be liable for any interest on
any money received by it except as it may otherwise agree with the
Depositor; and money held by the Property Trustee need not be segregated
from other funds held by it except in relation to the Payment Account
maintained by the Property Trustee pursuant to Section 3.1 and except to
the extent otherwise required by law; and
(v) the Property Trustee shall not be responsible for monitoring
the compliance by the Administrative Trustees or the Depositor with their
respective duties under this Trust Agreement, nor shall the Property
Trustee be liable for the default or misconduct of the Administrative
Trustees or the Depositor.
Section 8.2. Certain Notices.
---------------
Within 90 days after the occurrence of any Event of Default
actually known to the Property Trustee, the Property Trustee shall transmit, in
the manner and to the extent provided in Section 10.8, notice of such Event of
Default to the Securityholders, the Administrative Trustees and the Depositor,
unless such Event of Default shall have been cured or waived.
Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the
Debentures pursuant to the Indenture, the Administrative Trustee shall transmit,
in the manner and to the extent provided in Section 10.8, notice of such
exercise to the Securityholders and the Property Trustee, unless such exercise
shall have been revoked.
Section 8.3. Certain Rights of Property Trustee.
----------------------------------
Subject to the provisions of Section 8.1:
(a) the Property Trustee may rely and shall be protected in acting
or refraining from acting in good faith upon any resolution, Opinion of
Counsel, certificate, written representation of a Holder or transferee,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) if (i) in performing its duties under this Trust Agreement the
Property Trustee is required to decide between alternative courses of
action or (ii) in construing any of the provisions of this Trust Agreement
the Property Trustee finds the same ambiguous or inconsistent with any
other provisions contained herein or (iii) the Property Trustee is unsure
of the application of any provision of this Trust Agreement, then, ex-
<PAGE>
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cept as to any matter as to which the Preferred Securityholders are
entitled to vote under the terms of this Trust Agreement, the Property
Trustee shall deliver a notice to the Depositor requesting written
instructions of the Depositor as to the course of action to be taken and
the Property Trustee shall take such action, or refrain from taking such
action, as the Property Trustee shall be instructed in writing to take, or
to refrain from taking, by the Depositor; provided, however, that if the
Property Trustee does not receive such instructions of the Depositor within
ten Business Days after it has delivered such notice, or such reasonably
shorter period of time set forth in such notice (which to the extent
practicable shall not be less than two Business Days), it may, but shall be
under no duty to, take or refrain from taking such action not inconsistent
with this Trust Agreement as it shall deem advisable and in the best
interests of the Securityholders, in which event the Property Trustee shall
have no liability except for its own bad faith, negligence or willful
misconduct;
(c) any direction or act of the Depositor or the Administrative
Trustees contemplated by this Trust Agreement shall be sufficiently
evidenced by an Officers Certificate;
(d) whenever in the administration of this Trust Agreement, the
Property Trustee shall deem it desirable that a matter be established
before undertaking, suffering or omitting any action hereunder, the
Property Trustee (unless other evidence is herein specifically prescribed)
may, in the absence of bad faith on its part, request and rely upon an
Officers' Certificate which, upon receipt of such request, shall be
promptly delivered by the Depositor or the Administrative Trustees;
(e) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
rerecording, refiling or reregistration thereof;
(f) the Property Trustee may consult with counsel (which counsel may
be counsel to the Depositor or any of its Affiliates, and may include any
of its employees) and the advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon and in
accordance with such advice, such counsel may be counsel to the Depositor
or any of its Affiliates, and may include any of its employees; the
Property Trustee shall have the right at any time to seek instructions
concerning the administration of this Trust Agreement from any court of
competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Trust Agreement at the request
or direction of any
<PAGE>
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of the Securityholders pursuant to this Trust Agreement, unless such
Securityholders shall have offered to the Property Trustee reasonable
security or indemnity against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction;
(h) the Property Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond, debenture, note or other evidence of indebtedness or other paper or
document, unless requested in writing to do so by one or more
Securityholders, but the Property Trustee may make such further inquiry or
investigation into such facts or matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
its agents or attorneys, provided that the Property Trustee shall be
responsible for its own negligence or recklessness with respect to
selection of any agent or attorney appointed by it hereunder;
(j) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder the Property Trustee (i) may request instructions from the
Holders of the Trust Securities which instructions may only be given by the
Holders of the same proportion in Liquidation Amount of the Trust
Securities as would be entitled to direct the Property Trustee under the
terms of the Trust Securities in respect of such remedy, right or action,
(ii) may refrain from enforcing such remedy or right or taking such other
action until such instructions are received, and (iii) shall be protected
in acting in accordance with such instructions; and
(k) except as otherwise expressly provided by this Trust Agreement,
the Property Trustee shall not be under any obligation to take any action
that is discretionary under the provisions of this Trust Agreement.
No provision of this Trust Agreement shall be deemed to impose any
duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
<PAGE>
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Section 8.4. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Depositor, and the Trustees do not
assume any responsibility for their correctness. The Trustees shall not be
accountable for the use or application by the Depositor of the proceeds of the
Debentures.
Section 8.5. May Hold Securities.
-------------------
Any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust
Securities and, subject to Sections 8.8 and 8.13 and except as provided in the
definition of the term "Outstanding" in Article I, may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
Section 8.6. Compensation; Indemnity; Fees.
-----------------------------
Pursuant to the Indenture, the Depositor, as borrower, agrees:
(a) to pay to the Trustees from time to time reasonable compensation
for all services rendered by them hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and
advances incurred or made by the Trustees in accordance with any provision
of this Trust Agreement (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence
or bad faith; and
(c) to the fullest extent permitted by applicable law, to indemnify
and hold harmless (i) each Trustee, (ii) any Affiliate of any Trustee,
(iii) any officer, director, shareholder, employee, representative or agent
of any Trustee, and (iv) any employee or agent of the Trust or its
Affiliates, (referred to herein as an "Indemnified Person") from and
------------------
against any loss, damage, liability, tax, penalty, expense or claim of any
kind or nature whatsoever incurred by such Indemnified Person by reason of
the creation, operation or termination of the Trust or any act or omission
performed or omitted by such Indemnified Person in good faith on behalf of
the Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of authority conferred on such Indemnified Person by this
Trust Agreement, except that no Indemnified Person
<PAGE>
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shall be entitled to be indemnified in respect of any loss, damage or claim
incurred by such Indemnified Person by reason of gross negligence or
willful misconduct with respect to such acts or omissions.
(d) to the fullest extent permitted by applicable law, to advance
expenses (including legal fees) incurred by an Indemnified Person in
defending any claim, demand, action, suit or proceeding, from time to time,
prior to the final disposition of such claim, demand, action, suit or
proceeding upon receipt by the Depositor of (i) a written affirmation by or
on behalf of the Indemnified Person of its or his good faith belief that it
or he has met the standard of conduct set forth in this Section 8.6 and
(ii) an undertaking by or on behalf of the Indemnified Person to repay such
amount if it shall be determined that the Indemnified Person is not
entitled to be indemnified as authorized in the preceding subsection.
The provisions of this Section 8.6 shall survive the termination of
this Trust Agreement or the resignation or removal of any Trustee.
No Trustee may claim any lien or charge on any Trust Property as a
result of any amount due pursuant to this Section 8.6.
Section 8.7. Corporate Property Trustee Required; Eligibility of
---------------------------------------------------
Trustees.
--------
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Person shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Property Trustee with respect to the
Trust Securities shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind that
entity.
<PAGE>
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(c) There shall at all times be a Delaware Trustee with respect to
the Trust Securities. The Delaware Trustee shall either be (i) a natural person
who is at least 21 years of age and a resident of the State of Delaware or (ii)
a legal entity with its principal place of business in the State of Delaware and
that otherwise meets the requirements of applicable Delaware law that shall act
through one or more persons authorized to bind such entity.
Section 8.8. Conflicting Interests.
---------------------
If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Trust
Agreement. The Depositor and any Trustee may engage in or possess an interest in
other business ventures of any nature or description, independently or with
others, similar or dissimilar to the business of the Trust, and the Trust and
the Holders of Trust Securities shall have no rights by virtue of this Trust
Agreement in and to such independent ventures or the income or profits derived
therefrom, and the pursuit of any such venture, even if competitive with the
business of the Trust, shall not be deemed wrongful or improper. Neither the
Depositor, nor any Trustee, shall be obligated to present any particular
investment or other opportunity to the Trust even if such opportunity is of a
character that, if presented to the Trust, could be taken by the Trust, and the
Depositor or any Trustee shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to others any such
particular investment or other opportunity. Any Trustee may engage or be
interested in any financial or other transaction with the Depositor or any
Affiliate of the Depositor, or may act as depository for, trustee or agent for,
or act on any committee or body of holders of, securities or other obligations
of the Depositor or its Affiliates.
Section 8.9. Co-Trustees and Separate Trustee.
--------------------------------
Unless an Event of Default shall have occurred and be continuing, at
any time or times, for the purpose of meeting the legal requirements of the
Trust Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Depositor and the Administrative
Trustees, by agreed action of the majority of such Trustees, shall have power to
appoint, and upon the written request of the Administrative Trustees, the
Depositor shall for such purpose join with the Administrative Trustees in the
execution, delivery, and performance of all instruments and agreements necessary
or proper to appoint, one or more Persons approved by the Property Trustee
either to act as co-trustee jointly with the Property Trustee, of all or any
part of such Trust Property, or to the extent required by law to act as separate
trustee of any such property, in either case with such powers as may be provided
in the instrument of appointment, and to vest in such Person or Persons in the
capacity aforesaid, any property, title, right or power deemed necessary or
desirable, subject to the other provisions of this Section. If the Depositor
does not join in such appointment within
<PAGE>
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15 days after the receipt by it of a request so to do, or in case a Debenture
Event of Default has occurred and is continuing, the Property Trustee alone
shall have power to make such appointment. Any co-trustee or separate trustee
appointed pursuant to this Section shall either be (i) a natural person who is
at least 21 years of age and a resident of the United States or (ii) a legal
entity with its principal place of business in the United States that shall act
through one or more persons authorized to bind such entity.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged and delivered
by the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(a) The Trust Securities shall be executed and delivered and all
rights, powers, duties, and obligations hereunder in respect of the custody
of securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustees specified hereunder, shall be
exercised, solely by such Trustees and not by such co-trustee or separate
trustee.
(b) The rights, powers, duties, and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by
such appointment shall be conferred or imposed upon and exercised or
performed by the Property Trustee or by the Property Trustee and such co-
trustee or separate trustee jointly, as shall be provided in the instrument
appointing such co-trustee or separate trustee, except to the extent that
under any law of any jurisdiction in which any particular act is to be
performed, the Property Trustee shall be incompetent or unqualified to
perform such act, in which event such rights, powers, duties and
obligations shall be exercised and performed by such co-trustee or separate
trustee.
(c) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may accept
the resignation of or remove any co-trustee or separate trustee appointed
under this Section, and, in case a Debenture Event of Default has occurred
and is continuing, the Property Trustee shall have power to accept the
resignation of, or remove, any such co-trustee or separate trustee without
the concurrence of the Depositor. Upon the written request of the Property
Trustee, the Depositor shall join with the Property Trustee in the
execution, delivery and performance of all instruments and agreements
necessary or proper to effectuate such resignation or removal. A successor
to any co-trustee or separate trustee so resigned or removed may be
appointed in the manner provided in this Section.
<PAGE>
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(d) No co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Property Trustee or any
other trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any act of
a co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate trustee.
Section 8.10. Resignation and Removal, Appointment of Successor.
-------------------------------------------------
No resignation or removal of any Trustee (the "Relevant Trustee") and
----------------
no appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, the Relevant Trustee
may resign at any time by giving written notice thereof to the Securityholders.
If the instrument of acceptance by the successor Trustee required by Section
8.11 shall not have been delivered to the Relevant Trustee within 30 days after
the giving of such notice of resignation, the Relevant Trustee may petition
(pursuant to the Indenture, at the expense of the Depositor), any court of
competent jurisdiction for the appointment of a successor Relevant Trustee.
Unless a Debenture Event of Default shall have occurred and be
continuing, any Trustee may be removed at any time by Act of the Common
Securityholder. If a Debenture Event of Default shall have occurred and be
continuing, the Property Trustee or the Delaware Trustee, or both of them, may
be removed at such time by Act of the Holders of a majority in Liquidation
Amount of the Preferred Securities, delivered to the Relevant Trustee (in its
individual capacity and on behalf of the Trust). An Administrative Trustee may
be removed by the Common Securityholder at any time.
If any Trustee shall resign, be removed or become incapable of acting
as Trustee, or if a vacancy shall occur in the office of any Trustee for any
cause, at a time when no Debenture Event of Default shall have occurred and be
continuing, the Common Securityholder, by Act of the Common Securityholder
delivered to the retiring Trustee, shall promptly appoint a successor Trustee or
Trustees, and the retiring Trustee shall comply with the applicable requirements
of Section 8.11. If the Property Trustee or the Delaware Trustee shall resign,
be removed or become incapable of continuing to act as the Property Trustee or
the Delaware Trustee, as the case may be, at a time when a Debenture Event of
Default shall have occurred and be continuing, the Preferred Securityholders, by
Act of the Securityholders of a
<PAGE>
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majority in Liquidation Amount of the Preferred Securities then Outstanding
delivered to the retiring Relevant Trustee, shall promptly appoint a successor
Relevant Trustee or Trustees, and such successor Trustee shall comply with the
applicable requirements of Section 8.11.
If an Administrative Trustee shall resign, be removed or become
incapable of acting as Administrative Trustee, at a time when a Debenture Event
of Default shall have occurred and be continuing, the Common Securityholder by
Act of the Common Securityholder delivered to the Administrative Trustee shall
promptly appoint a successor Administrative Trustee or Administrative Trustees
and such successor Administrative Trustee or Trustees shall comply with the
applicable requirements of Section 8.11. If no successor Relevant Trustee shall
have been so appointed by the Common Securityholder or the Preferred
Securityholders and accepted appointment in the manner required by Section 8.11,
any Securityholder who has been a Securityholder of Trust Securities for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Relevant Trustee.
The Property Trustee shall give notice of each resignation and each
removal of a Trustee and each appointment of a successor Trustee to all
Securityholders in the manner provided in Section 10.8 and shall give notice to
the Depositor. Each notice shall include the name of the successor Relevant
Trustee and the address of its Corporate Trust Office if it is the Property
Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Delaware Trustee who is
a natural person dies or becomes, in the opinion of the Depositor, incompetent
or incapacitated, the vacancy created by such death, incompetence or incapacity
may be filled by (a) the unanimous act of remaining Administrative Trustees if
there are at least two of them or (b) otherwise by the Depositor (with the
successor in each case being a Person who satisfies the eligibility requirement
for Administrative Trustees or Delaware Trustee, as the case may be, set forth
in Section 8.7).
Section 8.11. Acceptance of Appointment by Successor.
--------------------------------------
In case of the appointment hereunder of a successor Relevant Trustee,
the retiring Relevant Trustee and each successor Relevant Trustee with respect
to the Trust Securities shall execute and deliver an amendment hereto wherein
each successor Relevant Trustee shall accept such appointment and which (a)
shall contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Relevant Trustee all the rights,
powers, trusts and duties of the retiring Relevant Trustee with respect to the
Trust Securities and the Trust and (b) shall add to or change any of the
provisions of this Trust Agreement as shall be necessary to provide for or
facilitate the administration of the Trust by more than one Relevant Trustee, it
being understood that nothing herein or in such amend-
<PAGE>
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ment shall constitute such Relevant Trustees co-trustees and upon the execution
and delivery of such amendment the resignation or removal of the retiring
Relevant Trustee shall become effective to the extent provided therein and each
such successor Relevant Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Relevant Trustee; but, on request of the Trust or any successor
Relevant Trustee such retiring Relevant Trustee shall duly assign, transfer and
deliver to such successor Relevant Trustee all Trust Property, all proceeds
thereof and money held by such retiring Relevant Trustee hereunder with respect
to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the first or second preceding paragraph, as the case way be.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be qualified
and eligible under this Article.
Section 8.12. Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business.
--------
Any corporation into which the Property Trustee or the Delaware
Trustee may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which such
Relevant Trustee shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of such Relevant Trustee, shall
be the successor of such Relevant Trustee hereunder, provided such corporation
shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto.
Section 8.13. Preferential Collection of Claims Against Depositor or
------------------------------------------------------
Trust.
-----
If and when the Property Trustee or the Delaware Trustee shall be or
become a creditor of the Depositor or the Trust (or any other obligor upon the
Debentures or the Trust Securities), the Property Trustee or the Delaware
Trustee, as the case may be, shall be subject to and shall take all actions
necessary in order to comply with the provisions of the Trust Indenture Act
regarding the collection of claims against the Depositor or Trust (or any such
other obligor).
<PAGE>
-49-
Section 8.14. Reports by the Property Trustee.
-------------------------------
(a) The Property Trustee shall transmit to Securityholders such
reports concerning the Property Trustee and its actions under this Trust
Agreement as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto. If required by Section 313(a) of
the Trust Indenture Act, the Property Trustee shall, within sixty days after
each June 30 following the date of this Trust Agreement deliver to
Securityholders a brief report, dated as of such June 30, which complies with
the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with each national
stock exchange, the Nasdaq National Market or such other interdealer quotation
system or self-regulatory organization upon which the Trust Securities are
listed or traded, with the Commission and with the Depositor.
Section 8.15. Reports to the Property Trustee.
-------------------------------
The Depositor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and the compliance
certificate required by Section 314(a) of the Trust Indenture Act in the form,
in the manner and at the times required by Section 314 of the Trust Indenture
Act.
Section 8.16. Evidence of Compliance with Conditions Precedent.
------------------------------------------------
Each of the Depositor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Trust Agreement that relate
to any of the matters set forth in Section 314(c) of the Trust Indenture Act.
Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
Section 8.17. Number of Trustees.
------------------
(a) The number of Trustees shall be four, provided that the Holder of
all of the Common Securities by written instrument may increase or decrease the
number of Administrative Trustees. The Property Trustee and the Delaware Trustee
may be the same Person, subject to the applicable eligibility requirements set
forth herein.
(b) If a Trustee ceases to hold office for any reason and the number
of Administrative Trustees is not reduced pursuant to Section 8.17(a), or if the
number of Trustees
<PAGE>
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is increased pursuant to Section 8.17(a), a vacancy shall occur. The vacancy
shall be filled with a Trustee appointed in accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul, dissolve or terminate the Trust. Whenever a vacancy in the number of
Administrative Trustees shall occur, until such vacancy is filled by the
appointment of an Administrative Trustee in accordance with Section 8.10, the
Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Agreement), shall have all the
powers granted to the Administrative Trustees and shall discharge all the duties
imposed upon the Administrative Trustees by this Trust Agreement.
Section 8.18. Delegation of Power.
-------------------
(a) Any Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21 his
or her power for the purpose of executing any documents contemplated in Section
2.7(a), including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing; and
(b) The Administrative Trustees shall have power to delegate from
time to time to such of their number or to the Depositor the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Administrative Trustees or otherwise as the Administrative
Trustees may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of this Trust Agreement, as set
forth herein.
ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER
Section 9.1. Dissolution Upon Expiration Date.
--------------------------------
Unless earlier dissolved, the Trust shall automatically dissolve on
December 31, 2048 (the "Expiration Date"). Thereafter, the Trust Property shall
---------------
be distributed in accordance with Section 9.4.
<PAGE>
-51-
Section 9.2. Early Dissolution.
-----------------
The first to occur of any of the following events is an "Early
Termination Event", the occurrence of which shall cause a dissolution of the
Trust:
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor;
(b) the written direction to the Property Trustee from the Depositor
at any time (which direction is optional and wholly within the discretion
of the Depositor) to dissolve the Trust and distribute Debentures to
Securityholders in exchange for the Preferred Securities;
(c) the redemption of all of the Preferred Securities; and
(d) the entry of an order for dissolution of the Trust by a court of
competent jurisdiction.
Section 9.3. Termination.
-----------
As soon as is practicable after the occurrence of an event referred to
in Section 9.1 or 9.2, and upon the completion of the winding up and liquidation
of the Trust under Section 9.4, the Trustees (each of whom is hereby authorized
to take such action) shall file a certificate of cancellation with the Secretary
of State of the State of Delaware terminating the Trust and, upon such filing,
the respective obligations and responsibilities of the Trustees and the Trust
created and continued hereby shall terminate.
Section 9.4. Liquidation.
-----------
(a) If an Early Termination Event specified in clause (a), (b) or (d)
of Section 9.2 occurs or upon the Expiration Date, the Trust shall be liquidated
by the Trustees as expeditiously as the Trustees determine to be possible by
distributing, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, to each Securityholder a Like Amount of Debentures,
subject to Section 9.4(d). Notice of liquidation shall be given by the Property
Trustee by first-class mail, postage prepaid mailed not later than 30 nor more
than 60 days prior to the Liquidation Date to each Holder of Trust Securities at
such Holder's address appearing in the Securities Register. All notices of
liquidation shall:
(i) state the Liquidation Date;
<PAGE>
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(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Debentures; and
(iii) provide such information with respect to the mechanics by
which Holders may exchange Trust Securities Certificates for Debentures, or
if Section 9.4(d) applies receive a Liquidation Distribution, as the
Administrative Trustees or the Property Trustee shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect
the liquidation of the Trust and distribution of the Debentures to
Securityholders, the Property Trustee shall establish a record date for such
distribution (which shall be not more than 45 days prior to the Liquidation
Date) and, either itself acting as exchange agent or through the appointment of
a separate exchange agent, shall establish such procedures as it shall deem
appropriate to effect the distribution of Debentures in exchange for the
Outstanding Trust Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) certificates representing a Like Amount of Debentures will be
issued to Holders of Trust Securities Certificates, upon surrender of such
certificates to the Administrative Trustees or their agent for exchange, (iii)
the Depositor shall use its reasonable efforts to have the Debentures listed on
the New York Stock Exchange or on such other exchange, interdealer quotation
system or self-regulatory organization as the Preferred Securities are then
listed, (iv) any Trust Securities Certificates not so surrendered for exchange
will be deemed to represent a Like Amount of Debentures, accruing interest at
the rate provided for in the Debentures from the last Distribution Date on which
a Distribution was made on such Trust Securities Certificates until such
certificates are so surrendered (and until such certificates are so surrendered,
no payments of interest or principal will be made to Holders of Trust Securities
Certificates with respect to such Debentures) and (v) all rights of
Securityholders holding Trust Securities will cease, except the right of such
Securityholders to receive Debentures upon surrender of Trust Securities
Certificates.
(d) In the event that, upon the Expiration Date or the occurrence of
an Early Termination Event, notwithstanding the other provisions of this Section
9.4, whether because of an order for dissolution entered by a court of competent
jurisdiction or otherwise, distribution of the Debentures in the manner provided
herein is determined by the Property Trustee not to be practical, the Trust
Property shall be liquidated, and the Trust shall be wound-up by the Property
Trustee in such manner as the Property Trustee determines. In such event,
Securityholders will be entitled to receive out of the assets of the Trust
available for distribution to Securityholders, after satisfaction of liabilities
to creditors of the Trust as
<PAGE>
-53-
provided by applicable law, an amount equal to the Liquidation Amount per Trust
Security plus accumulated and unpaid Distributions thereon to the date of
payment (such amount being the "Liquidation Distribution"). If, upon any such
------------------------
winding-up, the Liquidation Distribution can be paid only in part because the
Trust has insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts payable
by the Trust on the Trust Securities shall be paid on a pro rata basis (based
upon Liquidation Amounts). The Holder of the Common Securities will be entitled
to receive Liquidation Distributions upon any such winding-up pro rata
(determined as aforesaid) with Holders of Preferred Securities, except that, if
a Debenture Event of Default has occurred and is continuing, the Preferred
Securities shall have a priority over the Common Securities.
Section 9.5. Mergers, Consolidations, Amalgamations or Replacements
of the Trust.
------------------------------------------------------
The Trust may not merge with or into, consolidate, convert into,
amalgamate, or be replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, except pursuant to this
Section 9.5 or Section 9.4. At the request of the Depositor, with the consent of
the Administrative Trustees and without the consent of the Holders of the
Preferred Securities, the Property Trustee or the Delaware Trustee, the Trust
may merge with or into, consolidate, convert into, amalgamate, or be replaced by
or convey, transfer or lease its properties and assets substantially as an
entirety to a trust organized as such under the laws of any State; provided,
that (i) such successor entity either (a) expressly assumes all of the
obligations of the Trust with respect to the Preferred Securities or (b)
substitutes for the Preferred Securities other securities having substantially
the same terms as the Preferred Securities (the "Successor Securities") so long
--------------------
as the Successor Securities rank the same as the Preferred Securities rank in
priority with respect to distributions and payments upon liquidation, redemption
and otherwise, (ii) the Depositor expressly appoints a trustee of such successor
entity possessing the same powers and duties as the Property Trustee as the
holder of the Debentures, (iii) the Successor Securities are listed or traded,
or any Successor Securities will be listed upon notification of issuance, on any
national securities exchange or other organization on which the Preferred
Securities are then listed or traded, if any, (iv) such merger, consolidation,
conversion, amalgama-
<PAGE>
-54-
tion, replacement, conveyance, transfer or lease does not cause the Preferred
Securities (including any Successor Securities) to be downgraded by any
nationally recognized statistical rating organization, (v) such merger,
consolidation, conversion, amalgamation, replacement, conveyance, transfer or
lease does not adversely affect the rights, preferences and privileges of the
holders of the Preferred Securities (including any Successor Securities) in any
material respect, (vi) such successor entity has a purpose substantially
identical to that of the Trust, (vii) prior to such merger, consolidation,
conversion, amalgamation, replacement, conveyance, transfer or lease, the
Depositor has received an Opinion of Counsel to the effect that (a) such merger,
consolidation, conversion, amalgamation, replacement, conveyance, transfer or
lease does not adversely affect the rights, preferences and privileges of the
holders of the Preferred Securities (including any Successor Securities) in any
material respect, and (b) following such merger, consolidation, conversion,
amalgamation, replacement, conveyance, transfer or lease, neither the Trust nor
such successor entity will be required to register as an investment company
under the 1940 Act and (viii) the Depositor owns all of the common securities of
such successor entity and guarantees the obligations of such successor entity
under the Successor Securities at least to the extent provided by the Guarantee.
Notwithstanding the foregoing, the Trust shall not, except with the consent of
Holders of 100% in Liquidation Amount of the Preferred Securities, consolidate,
amalgamate, merge with or into, convert into or be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to any
other Person or permit any other entity to consolidate, amalgamate, merge with
or into, or replace it if such consolidation, conversion, amalgamation, merger,
replacement, conveyance, transfer or lease would cause the Trust or the
successor entity to be classified as other than a grantor trust for United
States Federal income tax purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.1. Limitation of Rights of Securityholders.
---------------------------------------
The death, incapacity, dissolution, bankruptcy or termination of any
Person having an interest, beneficial or otherwise, in Trust Securities shall
not operate to terminate this Trust Agreement nor dissolve, terminate or annul
the Trust nor entitle the legal representatives or heirs of such Person or any
Securityholder for such person, to claim an accounting, take any action or bring
any proceeding in any court for a partition or winding-up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
Section 10.2. Amendment.
---------
(a) This Trust Agreement may be amended from time to time by the
Trustees and the Depositor, without the consent of any Securityholders, (i) to
cure any ambiguity, correct or supplement any provision herein which may be
inconsistent with any other provision herein, or to make any other provisions
with respect to matters or questions arising under this Trust Agreement, which
shall not be inconsistent with the other provisions of this Trust Agreement, or
(ii) to modify, eliminate or add to any provisions of this Trust Agreement to
such extent as shall be necessary to ensure that the Trust will be classified
for United States
<PAGE>
-55-
Federal income tax purposes as a grantor trust at all times that any Trust
Securities are outstanding or to ensure that the Trust will not be required to
register as an investment company under the 1940 Act; provided, however, that in
the case of clause (ii), such action shall not adversely affect in any material
respect the interests of any Securityholder, and any such amendments of this
Trust Agreement shall become effective when notice thereof is given to the
Securityholders.
(b) Except as provided in Section 6.1(c) or Section 10.2(c) hereof,
any provision of this Trust Agreement may be amended by the Trustees and the
Depositor with (i) the consent of Trust Securityholders representing not less
than a majority (based upon Liquidation Amounts) of the Trust Securities then
Outstanding and (ii) receipt by the Trustees of an Opinion of Counsel to the
effect that such amendment or the exercise of any power granted to the Trustees
in accordance with such amendment will not affect the Trust's status as a
grantor trust for United States Federal income tax purposes or the Trust's
exemption from status of an investment company under the 1940 Act.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Securityholder, this Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date or (ii) restrict the right of a Securityholder to institute suit
for the enforcement of any such payment on or after such date; notwithstanding
any other provision herein, without the unanimous consent of the
Securityholders, this paragraph (c) of this Section 10.2 may not be amended.
(d) Notwithstanding any other provisions of this Trust Agreement, no
Trustee shall enter into or consent to any amendment to this Trust Agreement
which would cause the Trust to fail or cease to qualify for the exemption from
status of an investment company under the 1940 Act or fail or cease to be
classified as a grantor trust for United States Federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
this Trust Agreement may not be amended in a manner which imposes any additional
obligation on the Depositor, the Property Trustee or the Delaware Trustee
without the consent of the Depositor, the Property Trustee or the Delaware
Trustee, as the case may be.
(f) In the event that any amendment to this Trust Agreement is made,
the Administrative Trustees shall promptly provide to the Depositor a copy of
such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be
required to enter into any amendment to this Trust Agreement which affects its
own rights, duties or
<PAGE>
-56-
immunities under this Trust Agreement. The Property Trustee shall be entitled to
receive an Opinion of Counsel and an Officers' Certificate stating that any
amendment to this Trust Agreement is in compliance with this Trust Agreement.
Section 10.3. Separability.
------------
In case any provision in this Trust Agreement or in the Trust
Securities Certificates shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 10.4. Governing Law.
-------------
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
SECURITYHOLDERS, THE TRUST, THE DEPOSITOR AND THE TRUSTEES SHALL BE GOVERNED BY
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE AND ALL
RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS OF THE STATE OF DELAWARE OR ANY OTHER
JURISDICTION THAT WOULD CALL FOR THE APPLICATION OF THE LAW OF ANY OTHER
JURISDICTION OTHER THAN THE STATE OF DELAWARE; PROVIDED, HOWEVER, THAT THERE
SHALL NOT BE APPLICABLE TO THE SECURITYHOLDERS, THE TRUST, THE DEPOSITOR, THE
TRUSTEES OR THIS TRUST AGREEMENT ANY PROVISION OF THE LAWS (STATUTORY OR COMMON)
OF THE STATE OF DELAWARE PERTAINING TO TRUSTS THAT RELATE TO OR REGULATE, IN A
MANNER INCONSISTENT WITH THE TERMS HEREOF (A) THE FILING WITH ANY COURT OR
GOVERNMENT BODY OR AGENCY OF TRUSTEE ACCOUNTS OR SCHEDULES OF TRUSTEE FEES AND
CHARGES, (B) AFFIRMATIVE REQUIREMENTS TO POST BONDS FOR TRUSTEES, OFFICERS,
AGENTS OR EMPLOYEES OF A TRUST, (C) THE NECESSITY FOR OBTAINING COURT OR OTHER
GOVERNMENTAL APPROVAL CONCERNING THE ACQUISITION, HOLDING OR DISPOSITION OF REAL
OR PERSONAL PROPERTY, (D) FEES OR OTHER SUMS PAYABLE TO TRUSTEES, OFFICERS,
AGENTS OR EMPLOYEES OF A TRUST, (E) THE ALLOCATION OF RECEIPTS AND EXPENDITURES
TO INCOME OR PRINCIPAL, (F) RESTRICTIONS OR LIMITATIONS ON THE PERMISSIBLE
NATURE, AMOUNT OR CONCENTRATION OF TRUST INVESTMENTS OR REQUIREMENTS RELATING TO
THE TITLING, STORAGE OR OTHER MANNER OF HOLDING OR INVESTING TRUST ASSETS OR (G)
THE ESTABLISHMENT OF FIDUCIARY OR OTHER STANDARDS OF RESPONSIBILITY OR
LIMITATIONS ON THE ACTS OR POWERS OF TRUSTEES THAT ARE INCONSISTENT WITH THE
LIMITATIONS OR LIABILITIES OR AUTHORITIES AND POWERS OF THE TRUSTEES AS SET
FORTH OR REFERENCED IN THIS TRUST
<PAGE>
-57-
AGREEMENT. SECTION 3540 OF TITLE 12 OF THE DELAWARE CODE SHALL NOT APPLY TO THE
TRUST.
Section 10.5. Payments Due on Non-Business Day.
--------------------------------
If the date fixed for any payment on any Trust Security shall be a day
that is not a Business Day, then such payment need not be made on such date but
may be made on the next succeeding day that is a Business Day (except as
otherwise provided in Sections 4.1(a) and 4.2(d)), with the same force and
effect as though made on the date fixed for such payment, and no interest shall
accrue thereon for the period after such date.
Section 10.6. Successors.
----------
This Trust Agreement shall be binding upon and shall inure to the
benefit of any successor to the Depositor, the Trust or the Relevant Trustee,
including any successor by operation of law. Except in connection with
transactions permitted under Article 5 of the Indenture and pursuant to which
the assignee agrees in writing to perform the Depositor's obligations hereunder,
the Depositor shall not assign its obligations hereunder.
Section 10.7. Headings.
--------
The Article and Section headings are for convenience only and shall
not affect the construction of this Trust Agreement.
Section 10.8. Reports, Notices and Demands.
----------------------------
Any report, notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be given or served
to or upon any Securityholder or the Depositor may be given or served in writing
by deposit thereof, first-class postage prepaid, in the United States mail, hand
delivery or facsimile transmission, in each case, addressed, (a) in the case of
a Preferred Securityholder, to such Preferred Securityholder as such
Securityholder's name and address may appear on the Securities Register; and (b)
in the case of the Common Securityholder or the Depositor, to Wisconsin Energy
Corporation, 231 West Michigan Street, Milwaukee, Wisconsin 53201, Attention:
Chief Financial Officer, facsimile no.: (414) 221-5068. Such notice, demand or
other communication to or upon a Securityholder shall be deemed to have been
sufficiently given or made, for all purposes, upon hand delivery, mailing or
transmission.
Any notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
the Trust, the Property Trustee, the Delaware Trustee or the Administrative
Trustees shall be given in writing addressed (until another address is published
by the Trust) as follows: (a) with respect to the
<PAGE>
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Property Trustee to First National Bank of Chicago, One First National Plaza,
Chicago, Illinois, 60670-0126 Attention: Corporate Trust Services Division; (b)
with respect to the Delaware Trustee, to First Chicago Delaware, Inc. 300 King
Street, Wilmington, Delaware, 19801, Attention: Corporate Trust Division; and
(c) with respect to the Administrative Trustees, to them at the address above
for notices to the Depositor, marked "Attention Administrative Trustees of WEC
Capital Trust I." Such notice, demand or other communication to or upon the
Trust or the Property Trustee shall be deemed to have been sufficiently given or
made only upon actual receipt of the writing by the Trust or the Property
Trustee.
Section 10.9. Agreement Not to Petition.
-------------------------
Each of the Trustees and the Depositor agree for the benefit of the
Securityholders that, until at least one year and one day after the Trust has
been terminated in accordance with Article IX, they shall not file, or join in
the filing of, a petition against the Trust under any bankruptcy, insolvency,
reorganization or other similar law (including, without limitation, the United
States Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in
---------------
the commencement of any proceeding against the Trust under any Bankruptcy Law.
In the event the Depositor takes action in violation of this Section 10.9, the
Property Trustee agrees, for the benefit of Securityholders, that at the expense
of the Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Trust
or the commencement of such action and raise the defense that the Depositor has
agreed in writing not to take such action and should be stopped and precluded
therefrom and such other defenses, if any, as counsel for the Trustee or the
Trust may assert. The provisions of this Section 10.9 shall survive the
termination of this Trust Agreement.
Section 10.10. Trust Indenture Act; Conflict with Trust Indenture
Act.
--------------------------------------------------
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and shall, to
the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a trustee
for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Trust
Agreement by any of the provisions of the Trust Indenture Act, such required
provision shall control. If any provision of this Trust Agreement modifies or
excludes any provision of the Trust Indenture Act which may be
<PAGE>
-59-
so modified or excluded, the latter provision shall be deemed to apply to this
Trust Agreement as so modified or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Securities as equity securities
representing undivided beneficial ownership interests in the assets of the
Trust.
Section 10.11. Acceptance of Terms of Trust Agreement, Guarantee and
Indenture.
-----------------------------------------------------
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN
BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL OWNERSHIP
INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE
GUARANTEE AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST,
SUCH SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND
SUCH SECURITYHOLDER AND SUCH OTHERS.
<PAGE>
S-1
THIS TRUST AGREEMENT is executed as of the date first above written.
WISCONSIN ENERGY CORPORATION
By: /s/ Calvin H. Baker
----------------------------------------
Name: Calvin H. Baker
Title: Treasurer and Chief Financial
Officer
THE FIRST NATIONAL BANK OF CHICAGO, as
Property Trustee
By: /s/ Diane Swanson
----------------------------------------
Name: Diane Swanson
Title: Assistant Vice President
FIRST CHICAGO DELAWARE INC., as Delaware
Trustee
By: /s/ Sandra L. Caruba
----------------------------------------
Name: Sandra L. Caruba
Title: Vice President
/s/ Calvin H. Baker
--------------------------------------------
Calvin H. Baker,
as Administrative Trustee
/s/ Thomas H. Fehring
--------------------------------------------
Thomas H. Fehring,
as Administrative Trustee
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
OF
WEC CAPITAL TRUST I
This Certificate of Trust of WEC Capital Trust I (the "Trust"), dated
-----
February 25, 1999, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. C. Section 3801 et seq.).
-- ---
1. Name. The name of the business trust being formed hereby is WEC
----
Capital Trust I.
2. Delaware Trustee. The name and business address of the trustee of
----------------
the Trust with a principal place of business in the State of Delaware are as
follows:
First Chicago Delaware Inc.
300 King Street
Wilmington, Delaware 19801
3. Effective Date. This Certificate of Trust shall be effective
--------------
immediately upon its filing with the Secretary of State of the State of
Delaware.
In Witness Whereof, the undersigned, being all of the trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
THE FIRST NATIONAL BANK OF CHICAGO, as
Property Trustee
By: /s/ Sandra Caruba
--------------------------------------------
Name: Sandra Caruba
Title: Vice President
FIRST CHICAGO DELAWARE INC., as Delaware
Trustee
<PAGE>
-2-
By: /s/ Sandra Caruba
--------------------------------------------
Name: Sandra Caruba
Title: Vice President
/s/ Calvin H. Baker
--------------------------------------------
Calvin H. Baker as Administrative Trustee
/s/ Thomas H. Fehring
--------------------------------------------
Thomas H. Fehring as Administrative Trustee
<PAGE>
EXHIBIT B
To Amended and Restated Trust Agreement
Standard DTC Letter of Representation (Not Included in Edgar Filing)
<PAGE>
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE OTHER THAN IN ACCORDANCE
WITH THE TRUST AGREEMENT (AS DEFINED BELOW)
Certificate Number: C-1 Number Of Common Securities: 248,000
CUSIP No.:
Certificate Evidencing Common Securities
of
WEC CAPITAL TRUST I
6.85% Common Securities
(Liquidation Amount $25 Per Common Security)
WEC Capital Trust I, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that Wisconsin Energy
-----
Corporation (the "Holder") is the registered owner of 248,000 common securities
------
of the Trust representing undivided beneficial ownership interests of the Trust
and designated the 6.85% Common Securities (liquidation amount $25 per Common
Security) (the "Common Securities"). To the extent set forth in Section 5.10 of
-----------------
the Trust Agreement (as defined below) the Common Securities are not
transferable and any attempted transfer hereof shall be void. The designations,
rights, privileges, restrictions, preferences and other terms and provisions of
the Common Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of March 25, 1999, as the same may be amended from time to time
(the "Trust Agreement") including the designation of the terms of the Common
---------------
Securities as set forth therein. The Trust will furnish a copy of the Trust
Agreement to the Holder without charge upon written request to the Trust at its
principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
<PAGE>
-2-
In Witness Whereof, one of the Administrative Trustees of the Trust
has executed this certificate this 25th day of March 1999.
WEC CAPITAL TRUST I
By: ______________________________
Name:
Administrative Trustee
<PAGE>
EXHIBIT D
If the Preferred Security is to be a Global Certificate Insert:
THIS PREFERRED SECURITY IS A GLOBAL CERTIFICATE WITHIN THE
MEANING OF THE TRUST AGREEMENT HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (THE
"DEPOSITORY") OR A NOMINEE OF THE DEPOSITORY. THIS PREFERRED
----------
SECURITY IS EXCHANGEABLE FOR PREFERRED SECURITIES REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT AND NO TRANSFER
OF THIS PREFERRED SECURITY (OTHER THAN A TRANSFER OF THIS PREFERRED
SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY
OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE
OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW
YORK) TO WEC CAPITAL TRUST I OR ITS AGENT FOR REGISTRATION OF
-
TRANSFER, EXCHANGE OR PAYMENT, AND ANY PREFERRED SECURITY ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND
ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
Certificate Number: P-1 Number Of Preferred Securities
Cusip No.929-23G-204
Certificate Evidencing Preferred Securities
of
WEC CAPITAL TRUST I
<PAGE>
-2-
6.85% TRUST PREFERRED SECURITIES
(Liquidation Amount $25 Per Preferred Security)
WEC Capital Trust I, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that Cede & Co. (the
-----
"Holder") is the registered owner of 8,000,000 preferred securities of the Trust
- -------
representing an undivided beneficial ownership interest in the assets of the
Trust and designated the 6.85% Trust Preferred Securities (the "Preferred
---------
Securities"). The Preferred Securities are transferable on the books and records
- ----------
of the Trust, in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer as provided in Section
5.4 of the Trust Agreement (as defined below). The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Preferred Securities are set forth in, and this certificate and the Preferred
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of March 25, 1999 as the same may be amended from time to time
(the "Trust Agreement") including the designation of the terms of Preferred
---------------
Securities as set forth therein. The Holder is entitled to the benefits of the
Guarantee Agreement entered into by Wisconsin Energy Corporation, a Wisconsin
corporation, and First National Bank of Chicago, as guarantee trustee, dated as
of March 25, 1999, as the same may be amended from time to time (the
"Guarantee"), to the extent provided therein. The Trust will furnish a copy of
---------
the Trust Agreement and the Guarantee to the Holder without charge upon written
request to the Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
In Witness Whereof, one of the Administrative Trustees of the Trust
has executed this certificate this 25th day of March, 1999.
WEC CAPITAL TRUST I
By: _________________________________________
Name:
Administrative Trustee
<PAGE>
ASSIGNMENT
For Value Received, the undersigned assigns and transfers this
Preferred Security to:
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
(Insert assignee's social security
or tax identification number)
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
agent to transfer this Preferred Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date: ________________________
Signature: ______________________________________________________
(Sign exactly as your name appears on the other side
of this Preferred Security Certificate)
_______________________________________________________________
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
<PAGE>
EXHIBIT 4.49
================================================================================
GUARANTEE AGREEMENT
between
WISCONSIN ENERGY CORPORATION
(as Guarantor)
and
THE FIRST NATIONAL BANK OF CHICAGO
(as Trustee)
dated as of
March 25, 1999
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I. DEFINITIONS...................................................................... 2
Section 1.1. Definitions...................................................................... 2
ARTICLE II. TRUST INDENTURE ACT.............................................................. 5
Section 2.1. Trust Indenture Act; Application................................................. 5
Section 2.2. List of Holders.................................................................. 5
Section 2.3. Reports by the Guarantee Trustee................................................. 5
Section 2.4. Periodic Reports to the Guarantee Trustee........................................ 6
Section 2.5. Evidence of Compliance with Conditions Precedent................................. 6
Section 2.6. Events of Default; Waiver........................................................ 6
Section 2.7. Event of Default; Notice......................................................... 6
Section 2.8. Conflicting Interests............................................................ 7
ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE............................... 7
Section 3.1. Powers and Duties of the Guarantee Trustee....................................... 7
Section 3.2. Certain Rights of Guarantee Trustee.............................................. 9
ARTICLE IV. GUARANTEE TRUSTEE................................................................ 11
Section 4.1. Guarantee Trustee: Eligibility................................................... 11
Section 4.2. Appointment, Removal and Resignation of the Guarantee Trustee.................... 12
ARTICLE V. GUARANTEE........................................................................ 12
Section 5.1. Guarantee........................................................................ 12
Section 5.2. Waiver of Notice and Demand...................................................... 12
Section 5.3. Obligations Not Affected......................................................... 13
Section 5.4. Rights of Holders................................................................ 14
Section 5.5. Guarantee of Payment............................................................. 14
Section 5.6. Subrogation...................................................................... 14
Section 5.7. Independent Obligations.......................................................... 15
ARTICLE VI. COVENANTS AND SUBORDINATION...................................................... 15
Section 6.1. Subordination.................................................................... 15
</TABLE>
-i-
<PAGE>
<TABLE>
<S> <C>
Section 6.2. Pari Passu Guarantees........................................................... 15
ARTICLE VII. TERMINATION..................................................................... 15
Section 7.1. Termination..................................................................... 15
ARTICLE VIII. MISCELLANEOUS................................................................... 16
Section 8.1. Successors and Assigns.......................................................... 16
Section 8.2. Amendments...................................................................... 16
Section 8.3. Notices......................................................................... 16
Section 8.4. Benefit......................................................................... 17
Section 8.5. Interpretation.................................................................. 17
Section 8.6. Governing Law................................................................... 18
SIGNATURES................................................................................................ S-1
</TABLE>
-ii-
<PAGE>
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of March 25, 1999, is executed and
delivered by WISCONSIN ENERGY CORPORATION, a Wisconsin corporation (the
"Guarantor") having its principal office at 231 West Michigan Street, Milwaukee,
- ----------
Wisconsin 53201, and THE FIRST NATIONAL BANK OF CHICAGO, a national banking
association organized under the laws of the United States, as trustee (the
"Guarantee Trustee"), for the benefit of the Holders (as defined herein) from
- ------------------
time to time of the Preferred Securities (as defined herein) of WEC Capital
Trust I, a Delaware statutory business trust (the "Issuer").
------
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the
"Trust Agreement"), dated as of March 25, 1999 among the Issuer trustees named
- ----------------
therein, the Guarantor, as Depositor, and the Holders from time to time of
undivided beneficial ownership interests in the assets of the Issuer, the Issuer
is issuing $200,000,000 aggregate liquidation preference of its 6.85% Trust
Preferred Securities (liquidation preference $25 per preferred security) (the
"Preferred Securities") and $6,200,000 aggregate liquidation preference of its
- ---------------------
common securities (the "Common Securities" and, together with the Preferred
-----------------
Securities, the "Securities") representing undivided beneficial ownership
----------
interests in the assets of the Issuer and having the terms set forth in the
Trust Agreement;
WHEREAS, the Preferred Securities will be issued by the Issuer and the
proceeds thereof, together with the proceeds from the issuance of the Issuer's
Common Securities, will be used to purchase the Debentures (as defined in the
Trust Agreement) of the Guarantor which will be deposited with The First
National Bank of Chicago, as Property Trustee under the Trust Agreement, as
trust assets; and
WHEREAS, as incentive for the Holders to purchase the Securities, the
Guarantor desires irrevocably and unconditionally to agree, to the extent set
forth herein, to pay to the Holders of the Securities the Guarantee Payments (as
defined herein) and to make certain other payments on the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee Agreement for the
benefit of the Holders from time to time of the Securities.
<PAGE>
-2-
ARTICLE I. DEFINITIONS
Section 1.1. Definitions.
-----------
As used in this Guarantee Agreement, the terms set forth below shall,
unless the context otherwise requires, have the following meanings. Capitalized
or otherwise defined terms used but not otherwise defined herein shall have the
meanings assigned to such terms in the Trust Agreement as in effect on the date
hereof.
"Affiliate" of any specified Person means any other Person directly or
---------
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; provided, however, that an Affiliate of the
Guarantor shall not be deemed to include the Issuer. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Event of Default" means a default by the Guarantor on any of its
----------------
payment or other obligations under this Guarantee Agreement; provided, however,
that, except with respect to a default in payment of any Guarantee Payments, the
Guarantor shall have received notice of default and shall not have cured such
default within 90 days after receipt of such notice.
"Guarantee Payments" means the following payments or distributions,
------------------
without duplication, with respect to the Securities, to the extent not paid or
made by or on behalf of the Issuer; (i) any accumulated and unpaid Distributions
(as defined in the Trust Agreement) required to be paid on such Securities, to
the extent the Issuer shall have funds on hand available therefor at such time,
(ii) the redemption price, including all accumulated and unpaid Distributions to
the date of redemption (the "Redemption Price"), with respect to the Securities
----------------
called for redemption by the Issuer to the extent the Issuer shall have funds on
hand available therefor at such time, and (iii) upon a voluntary or involuntary
termination, winding-up or liquidation of the Issuer, unless Debentures are
distributed to the Holders, the lesser of (a) the aggregate of the liquidation
preference of $25 per Security plus accumulated and unpaid Distributions on the
Securities to the date of payment to the extent the Issuer shall have funds on
hand available to make such payment at such time and (b) the amount of assets of
the Issuer remaining available for distribution to Holders in liquidation of the
Issuer (in either case, the "Liquidation Distribution").
------------------------
"Guarantee Trustee" means The First National Bank of Chicago, until a
-----------------
Successor Guarantee Trustee has been appointed and has accepted such appointment
pursuant to
<PAGE>
-3-
the terms of this Guarantee Agreement and thereafter means each such Successor
Guarantee Trustee.
"Holder" means any holder, as registered on the books and records of
------
the Issuer, of any Securities; provided, however, that in determining whether
the holders of the requisite percentage of Preferred Securities have given any
request, notice, consent or waiver hereunder, "Holder" shall not include the
Guarantor, the Guarantee Trustee, or any Affiliate of the Guarantor or the
Guarantee Trustee.
"Indebtedness" means, with respect to a Person, (i) the principal of
------------
and premium, if any, and interest, if any, on, (A) indebtedness of such Person
for money borrowed and (B) indebtedness evidenced by securities, notes,
debentures, bonds or other similar instruments issued by such Person; (ii) all
capital lease obligations of such Person; (iii) all obligations of such Person
issued or assumed as the deferred purchase price of property, all conditional
sale obligations of such Person and all obligations of such Person under any
conditional sale or title retention agreement (but excluding trade accounts
payable and accrued liabilities in the ordinary course of business); (iv) all
obligations, contingent or otherwise, of such Person in respect of any letters
of credit, banker's acceptance, security purchase facilities or similar credit
transactions; (v) all obligations in respect of interest rate swap, cap, floor,
collar or other agreements, interest rate future or option contracts, currency
swap agreements, currency future or option contracts and other similar
agreements; and (vi) all obligations of the type referred to in clauses (i)
through (v) of others for the payment of which such Person is responsible or
liable as obligor, guarantor or otherwise.
"Indenture" means the Indenture, dated as of March 15, 1999, between
---------
the Guarantor and The First National Bank of Chicago, as Indenture Trustee,
together with the Securities Resolution dated as of March 16, 1999 relating to
the Debentures, each as amended or supplemented from time to time.
"Junior Subordinated Indebtedness" means all Indebtedness of the
--------------------------------
Guarantor subordinate and junior to Subordinated Indebtedness and Senior
Indebtedness.
"List of Holders" has the meaning specified in Section 2.2(a).
---------------
"Majority in liquidation preference of the Preferred Securities"
--------------------------------------------------------------
means, except as provided by the Trust Indenture Act, a vote by the Holder(s),
voting separately as a class, of more than 50% of the liquidation preference of
all then outstanding Preferred Securities issued by the Issuer.
"Officers' Certificate" means, with respect to any Person, a
---------------------
certificate signed by the Chairman or a Vice Chairman of the Board, the
President, a Vice President, the Treasurer or an Assistant Treas-
<PAGE>
-4-
urer and by the Comptroller, an Assistant Comptroller, the Secretary or an
Assistant Secretary of such Person, and delivered to the Guarantee Trustee. Any
Officers' Certificate delivered with respect to compliance with a condition or
covenant provided for in this Guarantee Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each officer, such
condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
------
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Responsible Officer" means, with respect to the Guarantee Trustee,
-------------------
any Senior Vice President, any Vice President, any Assistant Vice President, the
Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, any
Trust Officer or Assistant Trust officer or any other officer of the Corporate
Trust Department of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of that officer's knowledge of and familiarity with the
particular subject.
"Senior Indebtedness" means all Indebtedness of the Guarantor, unless,
-------------------
in the instrument creating or evidencing the same or pursuant to which the same
is outstanding, it is provided that such obligations are not superior in right
of payment to Subordinated Indebtedness or Junior Subordinated Indebtedness or
to other Indebtedness of the Guarantor which is pari passu with, or subordinated
---- -----
to, Subordinated Indebtedness or Junior Subordinated Indebtedness.
"Subordinated Indebtedness" means all Indebtedness of the Guarantor
-------------------------
which is subordinated and Junior in right of payment to Senior Indebtedness, but
does not include Junior Subordinated Indebtedness.
<PAGE>
-5-
"Successor Guarantee Trustee" means a successor Guarantee Trustee
---------------------------
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
-------------------
amended.
ARTICLE II. TRUST INDENTURE ACT
Section 2.1. Trust Indenture Act; Application.
--------------------------------
(a) This Guarantee Agreement is subject to the provisions of the
Trust Indenture Act that are required to be part of this Guarantee Agreement and
shall, to the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties imposed by Sections 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
Section 2.2. List of Holders.
---------------
(a) The Guarantor shall furnish or cause to be furnished to the
Guarantee Trustee (a) semiannually, on or before January 1 and June 30 of each
year, a list, in such form as the Guarantee Trustee may reasonably require, of
the names and addresses of the Holders ("List of Holders") as of a date not more
---------------
than 15 days prior to the delivery thereof, and (b) at such other times as the
Guarantee Trustee may request in writing, within 30 days after the receipt by
the Guarantor of any such request, a List of Holders as of a date not more than
15 days prior to the time such list is furnished, in each case to the extent
such information is in the possession or control of the Guarantor and is not
identical to a previously supplied list of Holders or has not otherwise been
received by the Guarantee Trustee in its capacity as such. The Guarantee
Trustee may destroy any List of Holders previously given to it on receipt of a
new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations under
Section 311(a), Section 311(b) and Section 312(b) of the Trust Indenture Act.
Section 2.3. Reports by the Guarantee Trustee.
--------------------------------
Not later than June 30 of each year, commencing June 30, 1999, the
Guarantee Trustee shall provide to the Holders such reports as are required by
Section 313 of the Trust In denture Act, if any, in the form and in the manner
provided by Section 313 of the Trust In-
<PAGE>
-6-
denture Act. The Guarantee Trustee shall also comply with the requirements of
Section 313 (d) of the Trust Indenture Act.
Section 2.4. Periodic Reports to the Guarantee Trustee.
-----------------------------------------
The Guarantor shall provide to the Guarantee Trustee, the Securities
and Exchange Commission and the Holders such documents, reports and information,
if any, as required by Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314 of the Trust Indenture Act, in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
Section 2.5. Evidence of Compliance with Conditions Precedent.
------------------------------------------------
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with such conditions precedent, if any, provided for in this
Guarantee Agreement that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) may be given in the form of an
Officers' Certificate.
Section 2.6. Events of Default; Waiver.
-------------------------
The Holders of a Majority in liquidation preference of the Preferred
Securities may, by vote, on behalf of the Holders, waive any past Event of
Default and its consequences. Upon such waiver, any such Event of Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured, for every purpose of this Guarantee Agreement, but no such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent therefrom.
Section 2.7. Event of Default; Notice.
------------------------
(a) The Guarantee Trustee shall, within 90 days after the occurrence
of an Event of Default known to the Guarantee Trustee, transmit by mail, first
class postage prepaid, to the Holders, notices of all such Events of Default
unless such defaults have been cured or waived before the giving of such notice;
provided, that, except in the case of a default in the payment of a Guarantee
Payment, the Guarantee Trustee shall be protected in withholding such notice if
and so long as the Board of Directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Guarantee Trustee in
good faith determines that the withholding of such notice is in the interests of
the Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of
any Event of Default unless the Guarantee Trustee shall have received written
notice, or a Respon-
<PAGE>
-7-
sible Officer charged with the administration of the Trust Agreement shall have
obtained written notice, of such Event of Default.
Section 2.8. Conflicting Interests.
---------------------
The Trust Agreement shall be deemed to be specifically described in
this Guarantee Agreement for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
Section 3.1. Powers and Duties of the Guarantee Trustee.
------------------------------------------
(a) This Guarantee Agreement shall be held by the Guarantee Trustee
for the benefit of the Holders, and the Guarantee Trustee shall not transfer
this Guarantee Agreement to any Person except a Holder exercising his or her
rights pursuant to Section 5.4(iv) or to a Successor Guarantee Trustee on
acceptance by such Successor Guarantee Trustee of its appointment to act as
Successor Guarantee Trustee. The right, title and interest of the Guarantee
Trustee shall automatically vest in any Successor Guarantee Trustee, upon
acceptance by such Successor Guarantee Trustee of its appointment hereunder, and
such vesting and cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the
Guarantee Trustee shall enforce this Guarantee Agreement for the benefit of the
Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of
Default and after the curing or waiver of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Guarantee Agreement, and no implied covenants shall be read into
this Guarantee Agreement against the Guarantee Trustee. In case an Event of
Default has occurred (that has not been cured or waived pursuant to Section
2.6), the Guarantee Trustee shall exercise such of the rights and powers vested
in it by this Guarantee Agreement, and use the same degree of care and skill in
its exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement shall be construed to
relieve the Guarantee Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
<PAGE>
-8-
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Guarantee Trustee shall
be determined solely by the express provisions of this Guarantee
Agreement, and the Guarantee Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Guarantee Agreement; and
(B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Guarantee
Trustee and conforming to the requirements of this Guarantee
Agreement; but in the case of any such certificates or opinions that
by any provision hereof or of the Trust Indenture Act are specifically
required to be furnished to the Guarantee Trustee, the Guarantee
Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Guarantee Agreement;
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was negligent
in ascertaining the pertinent facts upon which such judgment was made;
(iii) the Guarantee 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
liquidation preference of the Preferred Securities relating to the time,
method and place of conducting any proceeding for any remedy available to
the Guarantee Trustee, or exercising any trust or power conferred upon the
Guarantee Trustee under this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall require the
Guarantee Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in
the exercise of any of its rights or powers, if the Guarantee Trustee shall
have reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this Guarantee
Agreement or adequate indemnity against such risk or liability is not
reasonably assured to it.
<PAGE>
-9-
Section 3.2. Certain Rights of Guarantee Trustee.
-----------------------------------
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document reasonably believed by it to be
genuine and to have been signed, sent or presented by the proper party or
parties.
(ii) Any direction or act of the Guarantor contemplated by this
Guarantee Agreement shall be sufficiently evidenced by an Officer's
Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it desirable that a matter be
proved or established before taking, suffering or omitting to take any
action hereunder, the Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
request and rely upon an Officers' Certificate which, upon receipt of such
request from the Guarantee Trustee, shall be promptly delivered by the
Guarantor.
(iv) The Guarantee Trustee may consult with legal counsel, and
the written advice or opinion of such legal counsel with respect to legal
matters shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted to be taken by it hereunder in
good faith and in accordance with such advice or opinion. Such legal
counsel may be legal counsel to the Guarantor or any of its Affiliates and
may be one of its employees. The Guarantee Trustee shall have the right at
any time to seek instructions concerning the administration of this
Guarantee Agreement from any court of competent jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee
Agreement at the request or direction of any Holder, unless such Holder
shall have provided to the Guarantee Trustee such adequate security and
indemnity as would satisfy a reasonable person in the position of the
Guarantee Trustee, against the costs, expenses (including attorneys' fees
and expenses) and liabilities that might be incurred by it in complying
with such request or direction, including such reasonable advances as may
be requested by the Guarantee Trustee; provided that, nothing contained in
this Section 3.2(a)(v) shall be taken to relieve the Guarantee Trustee,
upon the occurrence of an Event of Default, of
<PAGE>
-10-
its obligation to exercise the rights and powers vested in it by this
Guarantee Agreement.
(vi) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through its agents or attorneys, and the Guarantee Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent
or attorney appointed with due care by it hereunder.
(viii) Any action taken by the Guarantee Trustee or its agents
hereunder shall bind the holders, and the signature of the Guarantee
Trustee or its agents alone shall be sufficient and effective to perform
such action. No third party shall be required to inquire as to the
authority of the Guarantee Trustee to so act or as to its compliance with
any of the terms and provisions of this Guarantee Agreement, both of which
shall be conclusively evidenced by the Guarantee's or its agent's taking
such action.
(ix) Whenever in the administration of this Guarantee Agreement
the Guarantee Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Guarantee Trustee (A) may request instructions from the
Holders of a Majority in Liquidation Amount of the Securities, (B) may
refrain from enforcing such remedy or right or taking such other action
until such instructions are received, and (C) shall be protected in acting
in accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed to
impose any duty or obligation on the Guarantee Trustee to perform any act or
acts or exercise any right, power, duty or obligation conferred or imposed on it
in any jurisdiction in which it shall be illegal, or in which the Guarantee
Trustee shall be unqualified or incompetent in accordance with applicable law,
to perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee Trustee
shall be construed to be a duty to act in accordance with such power and
authority.
<PAGE>
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Section 3.3. Indemnity.
---------
The Guarantor agrees to indemnify the Guarantee Trustee for, and to
hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Guarantee Trustee, arising out of or
in connection with the acceptance or administration of this Guarantee Agreement,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder. The Guarantee Trustee will not claim or exact any lien or
charge on any Guarantee Payments as a result of any amount due to it under this
Guarantee Agreement. The provisions of this Section 3.3 shall survive the
termination of this Guarantee Agreement or the removal or resignation of the
Guarantee Trustee.
ARTICLE IV. GUARANTEE TRUSTEE
Section 4.1. Guarantee Trustee: Eligibility.
------------------------------
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust Indenture
Act to act as such and has a combined capital and surplus of at least
$50,000,000, and shall be a corporation meeting the requirements of Section
310(c) of the Trust Indenture Act. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
supervising or examining authority, then, for the purposes of this Section
and to the extent permitted by the Trust Indenture Act, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Guarantee Trustee shall cease to be eligible
to so act under Section 4.1(a), the Guarantee Trustee shall immediately resign
in the manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
<PAGE>
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Section 4.2. Appointment, Removal and Resignation of the Guarantee
-----------------------------------------------------
Trustee.
- -------
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed
or removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a Successor
Guarantee Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Guarantee Trustee and delivered to
the Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold office until
a Successor Guarantee Trustee shall have been appointed or until its removal or
resignation. The Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing executed by the
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days after
delivery to the Guarantor of an instrument of resignation, the resigning
Guarantee Trustee may petition, at the expense of the Guarantor, any court of
competent jurisdiction for appointment of a Successor Guarantee Trustee. Such
court may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Guarantee Trustee.
ARTICLE V. GUARANTEE
Section 5.1. Guarantee.
---------
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by or on behalf of the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim which the Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Issuer to pay such amounts to the Holders.
Section 5.2. Waiver of Notice and Demand.
---------------------------
The Guarantor hereby waives notice of acceptance of the Guarantee
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any
<PAGE>
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right to require a proceeding first against the Guarantee Trustee, Issuer or any
other Person before proceeding against the Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
Section 5.3. Obligations Not Affected.
------------------------
The obligations, covenants, agreements and duties of the Guarantor
under this Guarantee Agreement shall in no way be affected or impaired by reason
of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Securities to be
performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions (other than an extension of time for payment
of Distributions that results from the extension of any interest payment
period on the Debentures as so provided in the Indenture), Redemption
Price, Liquidation Distribution or any other sums payable under the terms
of the Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Securities;
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Holders pursuant to the terms of the Securities, or
any action on the part of the Issuer granting indulgence or extension of
any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the Issuer
or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute
a legal or equitable discharge or defense of a guarantor, it being the
intent of this Section 5.3 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
<PAGE>
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There shall be no obligation of the Holders to give notice to, or
obtain the consent of, the Guarantor with respect to the happening of any of the
foregoing.
Section 5.4. Rights of Holders.
-----------------
The Guarantor expressly acknowledges that: (i) this Guarantee
Agreement will be deposited with the Guarantee Trustee to be held for the
benefit of the Holders; (ii) the Guarantee Trustee has the right to enforce this
Guarantee Agreement on behalf of the Holders; (iii) the Holders of a Majority in
liquidation preference of the Securities have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Guarantee Trustee in respect of this Guarantee Agreement or exercising any trust
or power conferred upon the Guarantee Trustee under this Guarantee Agreement;
and (iv) if the Guarantee Trustee fails to enforce this Guarantee Agreement
after a Holder has made a written request for the Guarantee Trustee to do so,
any Holder may, to the extent permitted by law, institute a legal proceeding
directly against the Guarantor to enforce its rights under this Guarantee
Agreement, without first instituting a legal proceeding against the Guarantee
Trustee, the Issuer or any other Person. Notwithstanding the foregoing, if the
Guarantor has failed to make a Guarantee Payment, a Holder may directly
institute a proceeding against the Guarantor for enforcement of this Guarantee
Agreement for such payment. The Guarantor waives, any right or remedy to
require that any action on this Guarantee Agreement be brought first against the
Issuer or any other Person or entity before proceeding directly against the
Guarantor.
Section 5.5. Guarantee of Payment.
--------------------
This Guarantee Agreement creates a guarantee of payment and not of
collection. This Guarantee Agreement will not be discharged except by payment
of the Guarantee Payments in full (without duplication of amounts theretofore
paid by the Issuer) or upon distribution of Debentures to Holders as provided in
the Trust Agreement.
Section 5.6. Subrogation.
-----------
The Guarantor shall be subrogated to all (if any) rights of the
Holders against the Issuer in respect of any amounts paid to the Holders by the
Guarantor under this Guarantee Agreement and shall have the right to waive
payment by the Issuer pursuant to Section 5.1; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any rights which it may acquire by way
of subrogation or any indemnity, reimbursement or other agreement, in all cases
as a result of payment under this Guarantee Agreement, if at the time of any
such payment, any amounts are due and unpaid under this Guarantee Agreement. If
any amount shall be paid to
<PAGE>
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the Guarantor in violation of the preceding sentence, the Guarantor agrees to
hold such amount in trust for the Holders and to pay over such amount to the
Holders.
Section 5.7. Independent Obligations.
-----------------------
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Securities and
that the Guarantor shall be liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this Guarantee Agreement
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI. COVENANTS AND SUBORDINATION
Section 6.1. Subordination.
-------------
This Guarantee Agreement will constitute an unsecured obligation of
the Guarantor and will rank subordinate and junior in right of payment to all
Senior Indebtedness and Subordinated Indebtedness of the Guarantor. If an Event
of Default has occurred and is continuing under the Trust Agreement, the rights
of the holders of the Common Securities to receive Guarantee Payments hereunder
shall be subordinated to the rights of the holders of Preferred Securities to
receive Guarantee Payments under this Guarantee.
Section 6.2. Pari Passu Guarantees.
---------------------
This Guarantee Agreement shall rank pari passu with any similar
---- -----
Guarantee Agreements issued by the Guarantor on behalf of the holders of
Preferred Securities issued by WEC Capital Trust I.
ARTICLE VII. TERMINATION
Section 7.1. Termination.
-----------
This Guarantee Agreement shall terminate and be of no further force
and effect upon (i) full payment of the Redemption Price of all Securities, (ii)
the distribution of Debentures to the Holders in exchange for all of the
Securities or (iii) full payment of the amounts payable in accordance with the
Trust Agreement upon liquidation of the Issuer. Notwithstanding the foregoing,
this Guarantee Agreement will continue to be effective or will be reinstated, as
the case may be, if at any time any Holder must restore payment of any sums paid
with respect to Preferred Securities or this Guarantee Agreement.
<PAGE>
-16-
ARTICLE VIII. MISCELLANEOUS
Section 8.1. Successors and Assigns.
----------------------
All guarantees and agreements contained in this Guarantee Agreement
shall bind the successors, assigns, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders of the Securities
then outstanding. Except in connection with a consolidation, merger or sale
involving the Guarantor that is permitted under Article 5 of the Indenture and
pursuant to which the assignee agrees in writing to perform the Guarantor's
obligations hereunder, the Guarantor shall not assign its obligations hereunder.
Section 8.2. Amendments.
----------
Except with respect to any changes which do not adversely affect the
rights of the Holders in any material respect (in which case no consent of the
Holders will be required), this Guarantee Agreement may only be amended with the
prior approval of the Holders of not less than a Majority in liquidation
preference of all the outstanding Preferred Securities. The provisions of
Article VI of the Trust Agreement concerning meetings of the Holders shall apply
to the giving of such approval.
Section 8.3. Notices.
-------
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, duly signed by the party giving such
notice, and delivered, telecopied or mailed by first class mail as follows:
(a) if given to the Guarantee Trustee, at the Guarantee Trustee's
mailing address set forth below (or such other address as the Guarantee
Trustee may give notice of to the Guarantor and the Holders):
The First National Bank of Chicago
One First National Plaza, Suite IL1-0126
Chicago, Illinois 60670-0126
Facsimile No.: (312) 407-1708
Attention: Corporate Trust Services Division
(b) if given to the Guarantor, to the address set forth below or such
other address, facsimile number or to the attention of such other Person as
the Guarantor may give notice to the Holders of the Preferred Securities:
<PAGE>
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Wisconsin Energy Corporation
231 West Michigan Street
Milwaukee, Wisconsin 53201
Facsimile No.: (414) 221-5068
Attention: Chief Financial Officer
(c) if given to the Issuer, in care of the Guarantee Trustee, at the
Issuer's (and the Guarantee Trustee's) address set forth below or such
other address as the Guarantee Trustee on behalf of the Issuer may give
notice to the Holders:
WEC Capital Trust I
c/o Wisconsin Energy Corporation
231 West Michigan Street
Milwaukee, Wisconsin 53201
Facsimile No.: (441) 221-5068
Attention: Chief Financial Officer
with a copy to:
The First National Bank of Chicago
One First National Plaza, Suite IL1-0126
Chicago, Illinois 60670-0126
Facsimile No.: (312) 407-1708
Attention: Corporate Trust Services Division
(d) if given to any Holder, at the address set forth on the books and
records of the Issuer.
All notices hereunder shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
Section 8.4. Benefit.
-------
This Guarantee Agreement is solely for the benefit of the Holders and
is not separately transferable from the Preferred Securities.
Section 8.5. Interpretation.
--------------
In this Guarantee Agreement, unless the context otherwise requires:
<PAGE>
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(a) capitalized terms used in this Guarantee Agreement but not
defined in the preamble hereto have the respective meanings assigned to
them in Section 1.1;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or
amended from time to time;
(d) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Guarantee Agreement unless otherwise defined in this
Guarantee Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa;
and
(g) the masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter genders.
Section 8.6. Governing Law.
-------------
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
<PAGE>
Exhibit 4.49
S-1
THIS GUARANTEE AGREEMENT is executed as of the date first above
written.
WISCONSIN ENERGY CORPORATION
By: /s/ Calvin H. Baker
--------------------------------------------------
Name: Calvin H. Baker
Title: Treasurer and Chief Financial Officer
THE FIRST NATIONAL BANK OF CHICAGO,
as Guarantee Trustee
By: /s/ Diane Swanson
--------------------------------------------------
Name: Diane Swanson
Title: Assistant Vice President
