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: July 27, 1998
(Date of earliest event reported)
Commission Registrant; State of Incorporation IRS Employer
file number Address; and Telephone Number Identification No.
1-11337 WPS RESOURCES CORPORATION 39-1775292
(A Wisconsin Corporation)
700 North Adams Street
P.O. Box 19001
Green Bay, WI 53407-9001
920-433-1466
1-14347 WPSR CAPITAL TRUST I 39-6691804
(A Delaware Statutory Business Trust)
c/o WPS Resources Corporation
700 North Adams Street
P.O. Box 19001
Green Bay, WI 53407-9001
920-433-1466
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Item 5. Other Events
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(a) Underwriting Agreement. The Registrants have entered into
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an underwriting agreement with A.G. Edwards & Sons, Inc., Robert W. Baird &
Co. Incorporated and Legg Mason Wood Walker, Incorporated (the "Underwriting
Agreement") in connection with the offering of the 7.00% Trust Preserved
Securities (the "Trust Preferred Securities") of WPSR Capital Trust I (the
"Trust") and the Guarantees of WPS Resources Corporation ("WPSR") with respect
thereto, registered with the Securities and Exchange Commission on Form S-3
(Reg. Nos. 333-56737 and 333-56737-01). The Underwriting Agreement is filed
herewith as Exhibit 1.
(b) Amended and Restated Declaration of Trust. WPSR has entered
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into an Amended and Restated Declaration of Trust for the Trust (the
"Declaration") with State Street Bank and Trust Company, as Property Trustee,
First Union Trust Company, National Association, as Delaware trustee, and
Daniel P. Bittner and Ralph G. Baeten as Administrative Trustees, in
connection with the offering of the Trust Preferred Securities. A copy of the
Declaration is filed herewith as Exhibit 4.1.
(c) Indenture and First Supplemental Indenture. WPSR has
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entered into an Indenture and First Supplemental Indenture, both with State
Street Bank and Trust Company, as trustee, in connection with the issuance and
sale to the Trust of WPSR's 7.00% Junior Subordinated Deferrable Interest
Debenture due 2038. Copies of the Indenture and Supplemental Indenture are
filed herewith as Exhibits 4.2 and 4.3, respectively.
(d) Trust Preferred Securities Guarantee Agreement. WPSR has
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entered into a Trust Preferred Securities Guarantee Agreement (the
"Guarantee") with State Street Bank and Trust Company, as Guaranty Trustee, in
connection with the issuance of the Trust Preferred Securities.
Item 7. Financial Statements and Exhibits.
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(c) Exhibits.
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1 Underwriting Agreement dated as of July 27, 1998 among
WPSR Capital Trust I and WPS Resources Corporation and
A.G. Edwards & Sons, Inc., Robert W. Baird & Co.
Incorporated and Legg Mason Wood Walker Incorporated.
4.1 Amended and Restated Declaration of Trust dated as of
July 30, 1998 among WPS Resources Corporation as
sponsor, State Street Bank and Trust Company as
Administrative Trustee, First Union Trust Company,
National Association, as Delaware Trustee, and
Daniel P. Bittner and Ralph G. Baeten, as Administrative
Trustees.
4.2 Indenture dated as of July 30, 1998, between
WPS Resources Corporation and State Street Bank and Trust
Company, as trustee.
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4.3 First Supplemental Indenture dated as of July 30,
1998, between WPS Resources Corporation and State
Street Bank and Trust Company, as trustee.
4.4 Trust Preferred Securities Guarantee Agreement dated
as of July 30, 1998, between WPS Resources Corporation
and State Street Bank and Trust Company, guarantee
trustee.
SIGNATURES
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Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
WPSR CAPITAL TRUST I
By: WPS Resources Corporation, Sponsor
By: /s/ Daniel P. Bittner
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Name: Daniel P. Bittner
Title: Vice President
WPS RESOURCES CORPORATION
By: /s/ Daniel P. Bittner
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Name: Daniel P. Bittner
Title: Vice President
Date: July 27, 1998
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EXHIBIT INDEX
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Exhibit.
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1 Underwriting Agreement dated as of July 27, 1998 among WPSR
Capital Trust I and WPS Resources Corporation and A.G. Edwards
& Sons, Inc., Robert W. Baird & Co. Incorporated and Legg Mason
Wood Walker Incorporated.
4.1 Amended and Restated Declaration of Trust dated as of July 30,
1998 among WPS Resources Corporation as sponsor, State Street
Bank and Trust Company as Administrative Trustee, First Union
Trust Company, National Association, as Delaware Trustee, and
Daniel P. Bittner and Ralph G. Baeten as Administrative
Trustees.
4.2 Indenture dated as of July 30, 1998, between WPS Resources
Corporation and State Street Bank and Trust Company, as
trustee.
4.3 First Supplemental Indenture dated as of July 30, 1998, between
WPS Resources Corporation and State Street Bank and Trust
Company, as trustee.
4.4 Trust Preferred Securities Guarantee Agreement dated as of
July 30, 1998, between WPS Resources Corporation and
State Street Bank and Trust Company, as guarantee trustee.
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EXHIBIT 1
2,000,000 Trust Preferred Securities
WPSR CAPITAL TRUST I
(a Delaware Trust)
7.00% Trust Preferred Securities
(Liquidation Amount of $25 Per Trust Preferred Security)
UNDERWRITING AGREEMENT
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July 27, 1998
A.G. Edwards & Sons, Inc.
Robert W. Baird & Co. Incorporated
Legg Mason Wood Walker, Incorporated
c/o A.G. Edwards & Sons, Inc.
One North Jefferson Avenue
St. Louis, Missouri 63103
Ladies and Gentlemen:
WPSR Capital Trust I (the "Trust"), a statutory business trust
organized under the Business Trust Act of the State of Delaware (the "Delaware
Act"), and WPS Resources Corporation, a Wisconsin corporation (the "Company"
and, together with the Trust, the "Offerors") confirm their agreement (the
"Agreement") with A.G. Edwards & Sons, Inc. ("A.G. Edwards"), Robert W. Baird
& Co. Incorporated, and Legg Mason Wood Walker, Incorporated, as underwriters
(collectively, the "Underwriters," which term shall also include any
underwriter substituted as hereinafter provided in Section 10 hereof), with
respect to the issue and sale by the Trust and the purchase by the
Underwriters, acting severally and not jointly, of the respective numbers of
7.00% Trust Preferred Securities (liquidation amount of $25 per preferred
security) of the Trust (the "Trust Preferred Securities") set forth in
Schedule A hereto. The Trust Preferred Securities are more fully described in
the Prospectus (as defined below).
The Trust Preferred Securities will be guaranteed by the Company,
to the extent set forth in the Prospectus, with respect to distributions and
amounts payable upon liquidation or redemption (the "Preferred Securities
Guarantee") pursuant to the Trust Preferred Securities Guarantee Agreement
(the "Preferred Securities Guarantee Agreement"), to be dated as of the
Closing Date (as defined below), executed and delivered by the Company and
State Street Bank and Trust Company, as trustee (the "Guarantee Trustee"), for
the benefit of the holders from time to time of the Trust Preferred
Securities, and will be entitled to the benefits of certain backup
undertakings described in the Prospectus with respect to the Company's
agreement pursuant to the Supplemental Indenture (as defined below) to pay all
expenses relating to the administration of the Trust. The Offerors each
understand that the Underwriters propose to make a public offering of the
Trust Preferred Securities as soon as they deem advisable after this Agreement
has been executed and delivered, and the Declaration (as defined below), the
Indenture (as
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defined below), and the Preferred Securities Guarantee Agreement have been
qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act").
The entire proceeds from the sale of the Trust Preferred Securities will be
combined with the entire proceeds from the sale by the Trust to the Company of
its common securities (the "Trust Common Securities" and, together with the
Trust Preferred Securities, the "Trust Securities") and will be used by the
Trust to purchase $51,500,000 of 7.00% Junior Subordinated Deferrable Interest
Debentures due 2038 (the "Subordinated Debentures") issued by the Company.
The Trust Common Securities have been guaranteed by the Company, to the extent
set forth in the Prospectus, with respect to distributions and amounts payable
upon liquidation or redemption (the "Common Securities Guarantee" and,
together with the "Preferred Securities Guarantee," the "Guarantees") pursuant
to a Common Securities Guarantee Agreement (the "Common Securities Guarantee
Agreement" and, together with the "Preferred Securities Guarantee Agreement,"
the "Guarantee Agreements"), to be dated as of the Closing Date, executed and
delivered by the Company for the benefit of the holders from time to time of
the Trust Common Securities.
The Trust Preferred Securities and Trust Common Securities will be
issued pursuant to the Amended and Restated Declaration of Trust of the Trust,
to be dated as of the Closing Date (the "Declaration"), among the Company, as
sponsor, State Street Bank and Trust Company, as property trustee (the
"Property Trustee"), First Union Trust Company, National Association, as
Delaware trustee (the "Delaware Trustee"), and Daniel P. Bittner and Ralph G.
Baeten, as administrative trustees (the "Administrative Trustees" and,
together with the Property Trustee and the Delaware Trustee, the "Trustees"),
and the holders, from time to time, of undivided beneficial interests in the
assets of the Trust. The Subordinated Debentures will be issued pursuant to
an indenture, to be dated as of the Closing Date (the "Base Indenture"),
between the Company and State Street Bank and Trust Company, as trustee (the
"Debt Trustee"), and a supplement to the Base Indenture, to be dated as of the
Closing Date (the "Supplemental Indenture," and, together with the Base
Indenture and any other amendments or supplements thereto, the "Indenture")
between the Company and the Debt Trustee. The Trust Preferred Securities, the
Preferred Securities Guarantee, and the Subordinated Debentures are
hereinafter collectively referred to as the "Securities."
The Offerors have filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-56737), as amended by Pre-Effective Amendment No. 1 thereto (No.
333-56737-01), covering the registration of the Securities under the
Securities Act of 1933, as amended (the "1933 Act"), including the related
preliminary prospectus or prospectuses. Promptly after the execution and
delivery of this Agreement, the Offerors will prepare and file a prospectus in
accordance with the provisions of Rule 430A ("Rule 430A") of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations")
and paragraph (b) of Rule 424 ("Rule 424(b)") of the 1933 Act Regulations.
The information included in such prospectus that was omitted from such
registration statement at the time it became effective but that is deemed to
be part of such registration statement at the time it became effective
pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A
Information." Each prospectus used before such registration statement became
effective, and any prospectus that omitted the Rule 430A Information that was
used after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
statement, including the exhibits thereto, schedules thereto, if any, and the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, at the time it became effective and including the Rule
430A Information, is herein called the "Registration Statement." The final
prospectus, including the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the 1933 Act, in the form first furnished to the
Underwriters for use in connection with the offering of the Securities, is
herein called the
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"Prospectus." For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval System ("EDGAR").
All references in this Agreement to financial statements and
schedules and other information which is "contained,""included" or "stated" in
the Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information that are or are deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include
the filing of any document under the 1934 Act that is or is deemed to be
incorporated by reference in the Registration Statement or the Prospectus, as
the case may be.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) Representations and Warranties by the Offerors. The
Offerors jointly and severally represent and warrant to each Underwriter as of
the date hereof and as of the Closing Time referred to in Section 2(c) hereof
and agree with each Underwriter as follows.
(i) Compliance with Registration Requirements. Each of the
Offerors meets the requirements for use of Form S-3 under the 1933 Act
and the 1933 Act Regulations. The Registration Statement has become
effective under the 1933 Act, and no stop order suspending the
effectiveness of such Registration Statement has been issued under the
1933 Act, and no proceedings for that purpose have been instituted or
are pending or, to the knowledge of the Offerors, threatened by the
Commission. The Offerors have complied with any request on the part of
the Commission for additional information.
At the time that the Registration Statement and any post-effective
amendments thereto became effective, on the date hereof, and at the
Closing Time, the Registration Statement and any amendments and
supplements thereto complied and will comply, in all material respects,
with the requirements of the 1933 Act and the 1933 Act Regulations and
the 1939 Act and the rules and regulations of the Commission under the
1939 Act (the "1939 Act Regulations") and did not and will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. Neither the Prospectus nor any amendments or
supplements thereto, at the time the Prospectus or any such amendment or
supplement was issued, on the date hereof and at the Closing Time,
included or will include an untrue statement of material fact or omitted
or will omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. The representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement, any amendment or supplement thereto, or the
Prospectus made in reliance upon and in conformity with information
furnished to the Offerors in writing by an Underwriter through A.G.
Edwards expressly for use in the Registration Statement, any amendment
or supplement thereto, or the Prospectus.
Each preliminary prospectus and the prospectus filed as part of
the Registration Statement as originally filed or as part of any
amendment thereof, or filed pursuant to Rule 424 under the
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1933 Act, complied or will comply when so filed in all material respects
with the 1933 Act Regulations, and each preliminary prospectus and the
Prospectus delivered to the Underwriters for use in connection with the
offering of the Securities was identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR,
except to the extent permitted by Regulation S-T under the 1933 Act
Regulations.
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement and
Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission under the 1934 Act (the "1934 Act Regulations"), and, at the
time the Registration Statement and any amendments thereto became
effective, at the time the Prospectus was issued, and at the Closing
Time, did not and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(iii) Exhibits. There are no contracts or documents which are
required to be described in the Registration Statement, the Prospectus,
or the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and filed as
required.
(iv) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included or incorporated
by reference in the Registration Statement are independent public
accountants with respect to the Company as required by the 1933 Act and
the 1933 Act Regulations.
(v) Financial Statements. The financial statements included in
the Registration Statement and the Prospectus, together with the related
schedules and notes, present fairly the financial position of the
Company and its consolidated subsidiaries at the dates indicated and the
results of operations, stockholders' equity and cash flows of the
Company and its consolidated subsidiaries for the periods specified;
such financial statements have been prepared in conformity with
generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved. The supporting
schedules, if any, included in the Registration Statement present
fairly, in accordance with GAAP, the information required to be stated
therein. The Company's ratios of earnings to fixed charges and ratios
of earnings to combined fixed charges and preferred dividend
requirements included in the Prospectus under the caption "Ratio of
Earnings to Fixed Charges and Earnings to Combined Fixed Charges and
Preferred Dividend Requirement" and in Exhibit 12 to the Registration
Statement have been calculated in compliance with Item 503(d) of
Regulation S-K of the Commission. The financial information and
statistical data set forth in the Prospectus under the captions
"Selected Historical Consolidated Financial Data" and "Capitalization"
present fairly the information shown therein and have been derived from
the audited financial statements included in the Registration Statement.
(vi) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement, any amendment thereto, and the Prospectus and except as
otherwise stated therein, (A) there has been no material adverse change
in the condition, financial or otherwise, of the Company and its
subsidiaries, considered as one enterprise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries,
considered
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as one enterprise, or of the Trust, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"), (B) there
have been no material transactions entered into or material liabilities
or obligations, direct or contingent, incurred by the Company or its
subsidiaries, other than those contemplated by the Prospectus or in the
ordinary course of business, and (C) except for regular dividends, there
has been no dividend or distribution of any kind declared, paid or made
by the Company on any class of its capital stock and there has been no
change in the capital stock of the Company or, except for borrowings
under existing revolving credit agreements consistent with past
practices and the accrual of interest on long-term debt of the Company's
Employee Stock Ownership Plan that is guaranteed by WPSC, there has been
no material change in the long-term debt of the Company.
(vii) Due Incorporation and Status of the Company. The Company
has been duly incorporated and is validly existing as a corporation
under the laws of the State of Wisconsin with power and authority
(corporate and other) to own, lease and operate its properties and
conduct its business as described in the Prospectus; the Company has not
filed Articles of Dissolution with the Secretary of State of the State
of Wisconsin, and no grounds exist for the Secretary of State of the
State of Wisconsin to dissolve such corporation administratively
pursuant to the provisions of the Wisconsin Business Corporation Law.
(viii) Due Incorporation and Good Standing of the Company's
Subsidiaries. Each of Wisconsin Public Service Corporation ("WPSC"),
WPS Energy Services, Inc. ("ESI"), and WPS Power Development, Inc.
("PDI") has been duly incorporated and is validly existing as a
corporation under the laws of the State of Wisconsin, with power and
authority (corporate and other) to own, lease and operate its properties
and conduct its business as described in the Prospectus; neither WPSC,
ESI, or PDI has filed Articles of Dissolution with the Secretary of
State of the State of Wisconsin, and no grounds exist for the Secretary
of State of Wisconsin to dissolve any of them administratively pursuant
to the provisions of the Wisconsin Business Corporation Law; each of
WPSC, ESI and PDI is duly qualified to do business as a foreign
corporation in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure to so
qualify or to be in good standing would not result in a Material Adverse
Effect.
(ix) Authorization of Stock of the Company. All of the
outstanding shares of capital stock of the Company have been duly and
validly issued, are fully paid and non-assessable, and are not subject
to the preemptive rights of any shareholder of the Company.
(x) Authorization and Ownership of Stock of Subsidiaries. All
of the issued and outstanding shares of common stock of WPSC, ESI and
PDI have been duly and validly issued, are fully paid and
non-assessable, and are owned by the Company free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity;
none of the outstanding shares of capital stock of WPSC, ESI or PDI was
issued in violation of the preemptive or similar rights of any
securityholder of such subsidiary. Other than WPSC, ESI and PDI, the
Company has no subsidiaries which, either individually or considered in
the aggregate as a single subsidiary, constitute a "significant
subsidiary" as defined in Rule 1-02 of Regulation S-X.
(xi) Existence and Good Standing of the Trust. The Trust has
been duly created and is validly existing as a statutory business trust
in good standing under the laws of the State of
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Delaware, with power and authority to own its properties and conduct its
business as described in the Prospectus and has conducted and will
conduct no business other than the transactions contemplated by this
Agreement and described in the Prospectus; the Trust has no liabilities
or obligations other than those arising out of the transactions
contemplated by this Agreement and the Declaration and described in the
Prospectus and is not a party to or otherwise bound by any agreement
other than those described in the Prospectus; the Trust is duly
qualified to transact business as a foreign corporation in good standing
under the laws of each jurisdiction in which such qualification is
necessary, except to the extent that the failure to so qualify would not
have a Material Adverse Effect; the Trust is and, under current law,
will be classified for United States federal income tax purposes as a
grantor trust and not as an association taxable as a corporation; the
Trust is and will be treated as a consolidated subsidiary of the Company
pursuant to GAAP; the Trust has no subsidiaries.
(xii) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by each of the Offerors.
(xiii) Authorization of the Declaration. The Declaration has
been duly authorized by the Company; each of the Administrative Trustees
of the Trust is an employee of the Company or WPSC and has been duly
authorized by the Company to execute and deliver the Declaration; at the
Closing Time, the Declaration will have been duly executed and delivered
by the Company and the Administrative Trustees, and assuming due
authorization, execution and delivery by the Property Trustee and the
Delaware Trustee, be a valid and binding obligation of the Company and
the Administrative Trustees, enforceable against the Company and the
Administrative Trustees in accordance with its terms, except to the
extent that enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting
creditors' rights generally or by general principles of equity
(regardless of whether enforcement is considered in a proceeding at law
or in equity) (the "Bankruptcy Exceptions"); the Declaration has been
duly qualified under the 1939 Act; the Declaration conforms to all
statements relating thereto contained in the Prospectus.
(xiv) The Trust Common Securities. The Trust Common Securities
have been duly authorized by the Declaration and, when issued and
delivered by the Trust to the Company in accordance with the terms of
the Declaration and against payment therefor as described in the
Prospectus, will be validly issued undivided beneficial interests in the
assets of the Trust; the issuance of the Trust Common Securities is not
subject to preemptive or other similar rights; no holder of Trust Common
Securities will be subject to personal liability by reason of being such
a holder; at the Closing Time, all of the issued and outstanding Trust
Common Securities will be directly owned by the Company, free and clear
of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity; the Trust Common Securities conform to all statements relating
thereto contained in the Prospectus.
(xv) The Trust Preferred Securities. The Trust Preferred
Securities have been duly and validly authorized and, when issued and
delivered pursuant to this Agreement against payment therefor as
provided herein, will be validly issued and (subject to the terms of the
Declaration) fully paid and nonassessable undivided beneficial interests
in the assets of the Trust and will be entitled to the benefits of the
Declaration; the issuance of the Trust Preferred Securities is not
subject to preemptive or other similar rights; holders of Trust
Preferred Securities will be entitled
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to the same limitation of personal liability extended to stockholders of
private corporations for profit incorporated under the General
Corporation Law of the State of Delaware; the Trust Preferred Securities
conform to all statements relating thereto contained in the Prospectus.
(xvi) Authorization of the Indenture. The Indenture has been duly
authorized by the Company and, when validly executed and delivered by
the Company, and assuming the due authorization, execution and delivery
of the Indenture by the Debt Trustee, will constitute a valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms except to the extent that enforcement thereof
may be limited by the Bankruptcy Exceptions; the Indenture has been duly
qualified under the 1939 Act; and the Indenture conforms to all
statements relating thereto contained in the Prospectus.
(xvii) Authorization of the Subordinated Debentures. The
Subordinated Debentures have been duly authorized by the Company and,
when authenticated in the manner provided for in the Indenture and
delivered against payment therefor as described in the Prospectus, will
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except to the extent
that enforcement thereof may be limited by the Bankruptcy Exceptions;
the Subordinated Debentures are subordinate and junior in right of
payment to all "senior indebtedness" (as defined in the Supplemental
Indenture) of the Company; the Subordinated Debentures conform to all
statements relating thereto contained in the Prospectus.
(xviii) Authorization of Guarantee Agreements. Each of the
Guarantee Agreements has been duly authorized by the Company and, when
executed and delivered by the Company, and in the case of the Preferred
Securities Guarantee Agreement, assuming due authorization, execution
and delivery by the Guarantee Trustee, will constitute a valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms, except to the extent that enforcement thereof
may be limited by the Bankruptcy Exceptions; the Preferred Securities
Agreement has been duly qualified under the 1939 Act; the Company's
obligations under the Preferred Securities Guarantee are subordinate and
junior in right of payment to all liabilities of the Company and will be
pari passu with the most senior preferred or preference stock of the
Company and with any guarantees of the Company entered into with respect
to any preferred or preference securities of an affiliate of the
Company; each of the Guarantees and the Guarantee Agreements conform to
the statements relating thereto contained in the Prospectus.
(xix) Absence of Defaults and Conflicts by the Company. Neither
the Company nor any of its subsidiaries is in violation of its articles
of incorporation or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition contained
in any bond, debenture, note or other evidence of indebtedness or in any
indenture, mortgage, joint venture agreement, deed of trust, loan or
credit agreement, or other agreement or instrument to which the Company,
or any of its subsidiaries is a party or by which it or any of them may
be bound, or to which any of the properties or assets of the Company or
any subsidiary is subject (collectively, the "Agreements and
Instruments"), except for such defaults that would not result in a
Material Adverse Effect; the issuance by the Company of the Subordinated
Debentures and the Guarantees, the compliance by the Company with all of
the provisions of this Agreement, the use of the proceeds from the sale
of the Securities as described in the Prospectus under the caption "Use
of Proceeds," the execution, delivery and performance by the Company of
the Declaration, the Guarantees, the Indenture, and the Subordinated
Debentures, the distribution by the Company
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of the Subordinated Debentures upon the liquidation of the Trust in the
circumstances contemplated by the Declaration and described in the
Prospectus, and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, any
of the Agreements or Instruments, nor will such action result in any
violation of the provisions of the articles of incorporation or by-laws
of the Company or any of its subsidiaries or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
properties.
(xx) Absence of Conflicts by the Trust. The issuance and sale of
the Trust Preferred Securities and the Trust Common Securities by the
Trust, the compliance by the Trust with all of the provisions of this
Agreement, the purchase of the Subordinated Debentures by the Trust from
the Company, the distribution of the Subordinated Debentures upon the
liquidation of the Trust in the circumstances contemplated by the
Declaration and described in the Prospectus, and the consummation by the
Trust of the transactions contemplated herein and in the Declaration
will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any agreement or
instrument to which the Trust is a party or by which the Trust is bound
or to which any of the property or assets of the Trust is subject, nor
will such action result in any violation of the provisions of the
Declaration or any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Trust or any
of its properties.
(xxi) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Offerors
of their obligations hereunder or in connection with the offering,
issuance or sale of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement, except such as have been
already obtained or as may be required under the 1933 Act, the 1933 Act
Regulations, the 1939 Act, the 1939 Act Regulations or state securities
laws.
(xxii) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company or the Trust, threatened, against or
affecting the Company or any of its subsidiaries which is required to be
disclosed in the Registration Statement (other than as disclosed
therein), or which might reasonably be expected to result in a Material
Adverse Effect (other than as disclosed therein) or adversely affect the
consummation of the transactions contemplated in this Agreement or the
performance by the Offerors of their obligations hereunder; the
aggregate of all pending legal or governmental proceedings to which the
Company or any of its subsidiaries is a party or of which any of their
respective property or assets is the subject which are not described in
the Registration Statement, including ordinary routine litigation
incidental to the business, would not, if adversely determined, result
in a Material Adverse Effect. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Company or the Trust, threatened, against or affecting the Trust.
(xxiii) Investment Company Act. Neither the Company nor the
Trust is, and upon the issuance and sale of the Securities as herein
contemplated and the application of the net proceeds
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therefrom as described in the Prospectus will not be, an "investment
company" or an entity "controlled" by an "investment company" as such
terms are defined in the Investment Company Act of 1940, as amended
(the "1940 Act").
(xxiv) Listing of the Trust Preferred Securities. The Trust
Preferred Securities have been approved for listing on the New York
Stock Exchange.
(xxv) Public Utility Holding Company Act Compliance. Except for
the Company, no person or corporation which is a "holding company" or a
"subsidiary of a holding company" within the meaning of such terms as
defined in the Public Holding Company Act of 1935, as amended (the "1935
Act"), directly or indirectly owns, controls or holds with power to vote
10% or more of the outstanding voting securities of WPSC; the Company is
exempt from all of the provisions of the 1935 Act except Section
9(a)(2); neither the Company nor WPSC is a registered holding company as
defined in the 1935 Act.
(xxvi) Possession of Statutory Authority and Franchises.
Each of the Company, WPSC, ESI, and PDI has statutory authority,
franchises, and consents free from burdensome restrictions and adequate
for the conduct of the business in which it is engaged.
(xxvii) Restrictions on Dividends. The Prospectus accurately
describes the most restrictive of the existing limitations on the
payment of dividends by WPSC on the shares of common stock of WPSC held
by the Company.
(b) Officer and Trustee Certificates. Any certificate signed by
any officer of the Company or any of its subsidiaries or by a Trustee of the
Trust that is delivered to the Underwriters shall be deemed a representation
and warranty by the Company or the Trust, as the case may be, to each
Underwriter as to the matters stated therein.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) Purchase Price. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Trust agrees to issue and sell to each Underwriter, and each
Underwriter, severally and not jointly, agrees to purchase from the Trust, at
the price per Trust Preferred Security set forth in Schedule B, the number of
Preferred Securities set forth in Schedule A opposite the name of such
Underwriter (except as otherwise provided in Schedule B), plus any additional
number of Trust Preferred Securities that such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Underwriters' Compensation. As compensation to the
Underwriters for their commitments hereunder and in view of the fact that the
proceeds of the sale of the Trust Preferred Securities will be used to
purchase the Subordinated Debentures of the Company, the Company hereby agrees
to pay at Closing Time to A.G. Edwards, for the accounts of the several
Underwriters, a commission per Trust Preferred Security set forth in Schedule
B for the Preferred Securities to be delivered by the Trust hereunder at
Closing Time.
(c) Payment. The Trust Preferred Securities to be purchased by
each Underwriter hereunder will be represented by a global certificate or
certificates in book entry form which will be
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deposited by or on behalf of the Trust with The Depository Trust Company
("DTC") or its designated nominee and registered in the name of Cede & Co.,
as nominee of DTC. The Trust will deliver the Trust Preferred Securities to
A.G. Edwards, for the account of each Underwriter, against payment by and
behalf of such Underwriter of the purchase price therefor, by causing DTC to
credit the Trust Preferred Securities to the account of A.G. Edwards at DTC.
Payment of the purchase price shall be made to the Trust by wire transfer of
immediately available funds to a bank account designated by the Trust. It is
understood that each Underwriter has authorized A.G. Edwards, for its account,
to accept delivery of, issue receipt for, and make payment of the purchase
price for, the Trust Preferred Securities which it has agreed to purchase.
Such delivery and payment shall be made at the offices of Foley & Lardner, 777
East Wisconsin Avenue, Milwaukee, Wisconsin 53202 or at such other place as
shall be agreed upon by the Company, the Trust and the Underwriters, at 9:00
A.M. (central time) on the third (fourth, if the pricing occurs after 4:30
P.M. (Eastern time) on any given day) business day after the date hereof
(unless postponed in accordance with the provisions of Section 10), or such
other time not later than ten business days after such date as shall be agreed
upon by the Underwriters, the Company, and the Trust (such time and date of
payment and delivery being herein called the "Closing Time").
At Closing Time the Company will pay, or cause to be paid, the
commission payable at such time under this Section 2 to a bank account
designated by A.G. Edwards, on behalf of the Underwriters, by wire transfer of
immediately available funds.
SECTION 3. COVENANTS OF THE OFFERORS. Each of the Offerors jointly
and severally covenants with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Offerors, subject to Section 3(b), will comply with the
requirements of Rule 430A or Rule 434, as applicable, and will notify A.G.
Edwards immediately, on behalf of the Underwriters, and confirm the notice in
writing, (i) when any post-effective amendment to the Registration
Statement shall become effective, or any supplement to the Prospectus or any
amended Prospectus shall have been filed, (ii) of the receipt of any comments
from the Commission, (iii) of any request by the Commission for any amendment
to the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening
of any proceedings for any of such purposes. The Offerors will promptly
effect the filings necessary pursuant to Rule 424 (b) and will take such steps
as they deem necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by
the Commission and, in the event that it was not, they will promptly file such
prospectus. The Offerors will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Offerors will give the
Underwriters notice of their intention to file or prepare any amendment to
the Registration Statement or any amendment, supplement or revision to either
the prospectus included in the Registration Statement at the time it became
effective or to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act
or otherwise, will furnish the Underwriters with copies of any such documents
a reasonable amount of time prior to such proposed filing or use, as the case
may be, and will not file or use any such document to which the Underwriters
or counsel for the Underwriters shall reasonably object.
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(c) Delivery of Registration Statements. The Offerors have
furnished or will deliver to the Underwriters and counsel for the
Underwriters, without charge, such number of signed and conformed copies of
the Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by reference therein) and
signed copies of all consents and certificates of experts. The copies of the
Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Offerors will furnish to each
Underwriter, without charge, during the period when the Prospectus is required
to be delivered under the 1933 Act or the 1934 Act, such number of copies of
the Prospectus (as amended or supplemented) as such Underwriter may reasonably
request. The Prospectus and any amendments or supplements thereto furnished
to the Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Offerors
will comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act
and the 1934 Act Regulations so as to permit the completion of the
distribution of the Securities as contemplated in this Agreement and in the
Prospectus. If at any time when a prospectus is required by the 1933 Act to
be delivered in connection with sales of the Securities, any event shall occur
or condition shall exist as a result of which it is necessary, in the opinion
of counsel for the Underwriters or for the Offerors, to amend the Registration
Statement or amend or supplement the Prospectus in order that the Prospectus
will not include any untrue statements of a material fact or omit to state a
material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Offerors will promptly prepare and file
with the Commission, subject to Section 3(b), such amendment or supplement as
may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements, and
the Offerors will furnish to the Underwriters such number of copies of
such amendment or supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Offerors will use their
reasonable best efforts, in cooperation with the Underwriters, to qualify the
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions as the Underwriters may designate and to
maintain such qualifications in effect for as long as may be necessary to
complete the distribution of the Trust Preferred Securities; provided,
however, that neither the Company nor the Trust shall be obligated to file any
general consent to service of process or to qualify as a foreign corporation
or as a dealer in securities in any jurisdiction in which it is not so
qualified.
(g) Rule 158. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally available
to their respective securityholders as soon as practicable an earnings
statement for the purposes of, and to provide the benefits contemplated by,
the last paragraph of Section 11(a) of the 1933 Act.
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(h) Use of Proceeds. The Trust will use the proceeds received
by it from the sale of the Trust Securities in the manner specified in the
Prospectus under "Use of Proceeds." The Company will use the proceeds received
by it from the sale of the Subordinated Debentures in the manner specified in
the Prospectus under "Use of Proceeds."
(i) Restriction on Sale of Securities. During a period of 30
days from the date of the Prospectus, neither the Trust nor the Company will,
without the prior written consent of A.G. Edwards, directly or indirectly,
sell, offer to sell, grant any option for the sale of, or otherwise dispose
of, any Trust Preferred Securities, any security convertible into or
exchangeable into or exercisable for Trust Preferred Securities or the
Subordinated Debentures or any subordinated debt securities substantially
similar to the Subordinated Debentures or equity securities substantially
similar to the Trust Preferred Securities (except for the Subordinated
Debentures and the Trust Preferred Securities issued pursuant to this
Agreement).
(j) Existence and Good Standing of the Trust. So long as any
Trust Preferred Securities are outstanding, the Trust will continue its
existence in good standing as a business trust under the Delaware Act with
power and authority to own property and conduct its business as described in
the Prospectus, and the Trust will remain duly qualified to transact business
as a foreign corporation in good standing in each jurisdiction in which such
qualification is necessary, except to the extent that the failure to so
qualify would not have a Material Adverse Effect on the Trust.
(k) Reporting Requirements. The Company, during the period when
the Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant to
the 1934 Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
(l) Issuance of Guarantee and Subordinated Debentures. The
Company shall issue the Guarantees and the Subordinated Debentures
concurrently with the issuance and sale of the Trust Preferred Securities as
contemplated herein.
(m) Listing of Subordinated Debentures. The Offerors will file
all documents and notices and take such further actions as may be required to
continue to list the Trust Preferred Securities on the New York Stock
Exchange. If the Trust Preferred Securities are exchanged for Subordinated
Debentures, the Company will use its best efforts to effect the listing of the
Subordinated Debentures on the New York Stock Exchange.
SECTION 4. Payment of Expenses. (a) Expenses. The Company will pay
all expenses incident to the performance of each Offeror's obligations under
this Agreement, including, but not limited to, (i) the preparation,
reproduction and filing of the Registration Statement (including financial
statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, reproduction, and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters and such
other documents as may be required in connection with the offering, purchase,
sale, issuance or delivery of the Securities, (iii) the preparation, issuance
and delivery of the certificates for the Trust Preferred Securities to the
Underwriters, the Trust Common Securities to the Company, and the
Subordinated Debentures to the Trust, including any stock or other transfer
taxes and any stamp or other duties payable upon the sale, issuance, or
delivery of the Securities, (iv) the fees and disbursements of the Trust's
counsel, accountants and other advisors, (v) any fees charged by Standard &
Poor's Ratings Services ("S&P") or Moody's Investors Services, Inc.
("Moody's") (each, a "Rating Agency") for rating the Trust Preferred
Securities,
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(vi) all fees and expenses in connection with the listing of the Trust
Preferred Securities and, if applicable, the Subordinated Debentures, on
the New York Stock Exchange, (vii) the qualification of the Securities under
securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the
preparation of the Blue Sky Survey and any supplement thereto, (viii) the
printing and delivery to the Underwriters of copies of each preliminary
prospectus, the Prospectus, and any amendments or supplements thereto, (ix)
the preparation, reproduction and delivery to the Underwriters of copies of
the Blue Sky Survey and any supplement thereto, (x) the fees and expenses of
any transfer agent or registrar for the Securities,(xi) the fees and expenses
of the Debt Trustee, including the fees and reimbursements of counsel for the
Debt Trustee in connection with the Indenture and the Subordinated Debentures,
(xii) the fees and expenses of the Property Trustee and the Guarantee Trustee,
including the fees and disbursements of counsel for the Property Trustee in
connection with the Declaration and the Certificate of Trust, and
(xiii) the cost of qualifying the Trust Preferred Securities with The
Depository Trust Company.
(b) Termination of Agreement. If this Agreement is terminated by
the Underwriters in accordance with the provisions of Section 5 or
Section 10(b) hereof, the Company shall reimburse the Underwriters for all
of their reasonable out-of-pocket expenses, including the fees and
disbursements of counsel for the Underwriters.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of
the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Offerors contained in Section 1 hereof
or in certificates of any officer of the Company or any subsidiary or of any
Trustee of the Trust delivered pursuant to the provisions hereof, to the
performance by the Offerors of their covenants and other obligations
hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Prospectus
shall have been filed with the Commission pursuant to Rule 424(b) and Rule
430A(a)(3), if applicable, within the applicable time period prescribed for
such filing by the 1933 Act Regulations, and no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission.
(b) Opinion of Counsel for Offerors. At Closing Time, the
Underwriters shall have received the favorable opinion, dated as of Closing
Time, of Foley & Lardner, counsel for the Offerors, in form and substance
satisfactory to counsel for the Underwriters, to the effect set forth in
Exhibit A hereto.
(c) Opinion of Special Delaware Counsel for Offerors. At
Closing Time, the Underwriters shall have received the favorable opinion,
dated as of Closing Time, of Richards, Layton & Finger, P.A., special
Delaware counsel for the Offerors, in form and substance satisfactory to
counsel for the Underwriters, to the effect set forth in Exhibit B hereto.
(d) Opinion of Counsel for Trustees. At Closing Time, the
Underwriters shall have received the favorable opinion, dated as of Closing
Time, of Bingham Dana LLP, counsel for the Property Trustee, the Debt
Trustee, and the Guarantee Trustee, and Richards, Layton & Finger, P.A.,
counsel for the Delaware Trustee, in form and substance satisfactory to
counsel for the Underwriters, to the effect set forth in Exhibit C and
Exhibit D, respectively.
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(e) Opinion of Counsel for Underwriters. At Closing Time, the
Underwriters shall have received the favorable opinion, dated as of Closing
Time, of Schiff Hardin & Waite, counsel for the Underwriters, with respect
to the validity of the Trust Preferred Securities, the Registration Statement,
the Prospectus and other related matters as the Underwriters may reasonably
request (it being understood that such counsel may rely as to all matters of
Wisconsin law and legal conclusions based thereon upon the opinion of counsel
for the Company referred to in Section 5(b) and to all matters of Delaware law
and legal conclusions based thereon upon the opinion of counsel referred to in
Section 5(c) hereof). Such counsel may also state that, insofar as such
opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and its subsidiaries, and
of Trustees of the Trust, and certificates of public officials.
(f) Officer and Trustee Certificates. At the Closing Time,
there shall not have been, since the date hereof or since the respective dates
as of which information is given in the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries, considered
as one enterprise, whether or not arising in the ordinary course of business,
and the Underwriters shall have received certificates of the President or a
Vice President of the Company and of the chief financial or chief accounting
officer of the Company, dated as of Closing Time, to the effect that (A) there
has been no such material adverse change, (B) the representations and
warranties in Section 1(a) hereof are true and correct with the same force and
effect as though expressly made at and as of Closing Time, (C) the Company
has complied with all agreements and satisfied all conditions on its part to
be performed or satisfied at or prior to Closing Time, and (D) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are pending or, to the
best knowledge of the Company, are contemplated by the Commission.
(g) Accountant's Comfort Letter. At the time of the execution
of this Agreement, the Underwriters shall have received from Arthur Andersen
LLP a letter, dated as of the date hereof, in form and substance reasonably
satisfactory to the Underwriters, to the effect that:
(i) they are independent public accountants with respect to the
Company and its subsidiaries within the meaning of the 1933 Act and the
applicable 1933 Act Regulations;
(ii) in their opinion, the audited consolidated financial
statements and financial statement schedule(s) incorporated by reference
in the Registration Statement and the Prospectus and included in the
Form 10-K comply as to form in all material respects with the applicable
accounting requirements of the Act, the 1933 Act Regulations, the 1934
Act and the applicable 1934 Act Regulations;
(iii) on the basis of (A) the performance of procedures specified
by the American Institute of Public Accountants for a review of interim
financial information as described in Statement on Auditing Standards
No. 71, Interim Financial Information, on the unaudited consolidated
balance sheets, the unaudited consolidated statements of income and
retained earnings, and the unaudited consolidated statements of cash
flows, of the Company and its subsidiaries included in the Company and
WPSC's quarterly reports on Form 10-Q filed with the Commission under
Section 13 of the 1934 Act (the "Form 10-Q's) subsequent to the Form
10-K, (B) a reading of the latest available unaudited financial
statements of the Company and its subsidiaries, (C) a reading of the
minutes of the Annual Meeting of Shareholders and the latest minutes of
meetings
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of the Board of Directors of the Company as set forth in the minute books
for the current year, and (D) inquiries of the officers of the Company
who have responsibility for financial and accounting matters (it being
understood that the foregoing procedures do not constitute an audit made
in accordance with GAAP and would not necessarily reveal matters of
significance with respect to the comments made in such letter, and
accordingly that Arthur Andersen LLP makes no representation as to the
sufficiency of such procedures for the purposes of the several
Underwriters), nothing has come to their attention which caused them to
believe that (1) any material modifications should be made to the
unaudited consolidated financial statements included in the Form 10-Q's
for them to be in conformity with GAAP; (2) the unaudited consolidated
financial statements included in the Form 10-Q's do not comply as to
form in all material respects with the applicable accounting
requirements of the 1934 Act and the 1934 Act Regulations, as they apply
to Form 10-Q, or (3) at the date of the latest available consolidated
financial statements and at a specified date not more than three
business days prior to the date of such letter, there was any change in
the consolidated capital stock or increase in the consolidated long-term
debt of the Company and its subsidiaries or any decrease in the
consolidated net assets or shareholders' equity of the Company, in each
case as compared with the amounts shown in the most recent consolidated
balance sheet of the Company incorporated by reference into the
Registration Statement and the Prospectus or, during the period from the
date of such balance sheet to a specified date not more than three
business days prior to the date of such letter, upon inquiries of the
appropriate officers of the Company, there were any decreases, as
compared with the corresponding period in the preceding year, in
consolidated operating revenues, consolidated net income or earnings per
share, except in each case as set forth in or contemplated by the
Registration Statement and the Prospectus or except for such exceptions
enumerated in such letter as shall have been agreed to by the
Underwriters and the Company; and
(iv) in addition to the audits referred to in their report
appearing in the Form 10-K incorporated by reference in the Registration
Statement and the Prospectus, and the limited procedures referred to in
clause (iii) above, they have carried out certain other specified
procedures, not constituting an audit, with respect to certain amounts,
percentages, and financial information which are included or
incorporated by reference in the Registration Statement and the
Prospectus and which are specified by the Underwriters, and have found
such amounts, percentages, and financial information to be in agreement
with the relevant accounting, financial and other records of the Company
and its subsidiaries identified in such letter.
(h) Bring-down Comfort Letter. At Closing Time, the Underwriters
shall have received from Arthur Andersen LLP a letter, dated as of Closing
Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (h) of this Section, except that the
specified date referred to shall be a date not more than three calendar days
prior to Closing Time.
(i) Maintenance of Ratings. At Closing Time, the Trust
Preferred Securities shall be rated at least AA- by S&P and a1 by Moody's; and
the Company shall have delivered to the Underwriters a letter, dated the
Closing Time, from each such rating agency, or other evidence satisfactory to
the Underwriters, confirming that the Trust Preferred Securities have such
ratings; since the date of this Agreement, there shall not have occurred a
downgrading in the rating assigned to the Trust Preferred Securities or any of
the other securities of the Company or WPSC by S&P or Moody's, and neither S&P
or Moody's shall have publicly announced that it has under surveillance or
review its rating of the Trust Preferred Securities or any of the Company's or
WPSC's securities.
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(j) Execution of Agreements. The Declaration, the Preferred
Securities Guarantee and the Indenture shall have been executed and delivered,
in each case in a form reasonably satisfactory to the Underwriters.
(k) Approval of Listing. The Trust Preferred Securities shall
have been duly listed, subject to official notice of issuance, on the New York
Stock Exchange.
(l) Additional Documents. At Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as
they may require for the purpose of enabling them to pass upon the issuance
and sale of the Securities as herein contemplated, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of
any of the conditions, herein contained; and all proceedings taken by
the Offerors in connection with the issuance and sale of the Securities as
herein contemplated shall be satisfactory in form and substance to the
Underwriters and their counsel.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by
A.G. Edwards, on behalf of the Underwriters, by notice to the Offerors at any
time at or prior to Closing Time, and such termination shall be without
liability of any party to any other party, except as provided in Section 4 and
except that Sections 1, 6, 7 and 8 shall survive any such termination and
remain in full force and effect.
SECTION 6. INDEMNIFICATION
(a) Indemnification of Underwriters. The Offerors jointly and
severally agree to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto) or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission; provided that any such
settlement is effected with the written consent of the Trust and the
Company; and
(iii) against any and all expense whatsoever (including the fees
and disbursements of counsel chosen by A.G. Edwards) reasonably
incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body,
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commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, at the time that such expense is incurred, to the extent that
any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
- -------- -------
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by
any Underwriter through A.G. Edwards expressly for use in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto); and provided, further,
that this indemnity agreement with respect to any preliminary prospectus shall
not inure to the benefit of any Underwriter from whom the person asserting any
such loss, liability, claim, damage or expenses purchased Securities, or any
person controlling such Underwriter, if the Offerors sustain the burden of
proving that a copy of the Prospectus (as then amended or supplemented if the
Company or the Trust shall have furnished any such amendments or supplements
thereto, but excluding documents incorporated or deemed to be incorporated by
reference therein), was not sent or given by or on behalf of such Underwriter
to such person, if such is required by law, at or prior to the written
confirmation of the sale of such Securities to such person and if the
Prospectus (as so amended or supplemented, but excluding documents
incorporated or deemed to be incorporated by reference therein) would have
corrected the defect giving rise to such loss, liability, claim, damage or
expense, it being understood that this proviso shall have no application if
such defect shall have been corrected in a document which is incorporated or
deemed to be incorporated by reference in the Prospectus.
(b) Indemnification of Company, Trust, Officers, Directors and
Trustees. Each Underwriter severally agrees to indemnify and hold harmless
the Trust, each of the Trustees of the Trust, the Company, the Company's
directors, each of the Company's officers who signed the Registration
Statement, and each person, if any, who controls the Trust or the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
against any and all loss, liability, claim, damage and expense described in
the indemnity contained in subsection (a) of this Section, as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through A.G. Edwards
expressly for use in the Registration Statement (or any amendment thereto) or
in such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) Actions against Parties; Notification. Each indemnified
party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder
to the extent it is not materially prejudiced as a result thereof and in any
event shall not relieve it from any liability which it may have otherwise than
on account of this indemnity agreement. In the case of parties indemnified
pursuant to Section 6(a) above, counsel to the indemnified parties shall
be selected by A.G. Edwards, and, in the case of parties indemnified pursuant
to Section 6(b) above, counsel to the indemnified parties shall be selected by
the Company, in each case reasonably acceptable to the indemnifying party. An
indemnifying party may participate at its own expense in the defense of any
such action; provided, however, that counsel to the indemnifying party shall
not (except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for
fees and expenses of more than
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one counsel (in addition to any local counsel) separate from their own counsel
for all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7 hereof
(whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising
out of such litigation, investigation, proceeding or claim, and (ii) does
not include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
SECTION 7. CONTRIBUTION. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims,
damages and expenses incurred by such indemnified party, as incurred, (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Offerors on the one hand and the Underwriters on the other hand from the
offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Offerors on
the one hand and of the Underwriters on the other hand in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Offerors on the one hand and the
Underwriters on the other hand in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and Trust and the total underwriting commission received by the
Underwriters, in each case as set forth on the cover of the Prospectus, bear
to the aggregate initial public offering price of the Securities as set forth
on such cover.
The relative fault of the Offerors on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Offerors or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Offerors and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
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Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by which
the total price at which the Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company who signed the
Registration Statement, and each Trustee of the Trust, and each person, if
any, who controls the Company or the Trust, within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company and the Trust. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the number of Trust Preferred Securities set forth opposite their
respective names in Schedule A hereto and not joint.
SECTION 8. REPRESENTATIONS AND WARRANTIES TO SURVIVE DELIVERY. All
representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries or in
certificates of Trustees of the Trust submitted pursuant hereto shall remain
operative and in full force and effect, regardless of any investigation made
by or on behalf of any Underwriter or controlling person, or by or on behalf
of the Company or the Trust, and shall survive delivery of the Trust Preferred
Securities to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT
(a) Termination; General. The Underwriters may terminate this
Agreement, by notice to the Offerors, at any time at or prior to the Closing
Time (i) if there has been, since the time of execution of this Agreement or
since the respective dates as of which information is given in the Prospectus,
any material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise, or the Trust, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States, any
outbreak of hostilities or escalation thereof or other calamity or crisis or
any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Underwriters,
impracticable to market the Trust Preferred Securities or to enforce contracts
for the sale of the Trust Preferred Securities, or (iii) if trading in any
securities of the Company or the Trust has been suspended or materially
limited by the Commission or the New York Stock Exchange, or if trading
generally on the New York Stock Exchange has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by any of said exchanges or by such
system or by order of the Commission, the National Association of Securities
Dealers, Inc. or any governmental authority, or (iv) if a banking moratorium
has been declared by either Federal or New York authorities.
19
<PAGE>
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that
Sections 1, 6, 7 and 8 shall survive such termination and remain in full force
and effect.
SECTION 10. DEFAULT BY ONE OR MORE UNDERWRITERS. If one or more of
the Underwriters shall fail at Closing Time to purchase the Trust Preferred
Securities (other than for some reason to justify, in accordance with the
provisions hereof, the cancellation or termination of its or their obligations
hereunder) which it or they are obligated to purchase under this Agreement
(the "Defaulted Securities"), A.G. Edwards shall have the right, within
24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but
not less than all, of the Defaulted Securities in such amounts as may be
agreed upon and upon the terms herein set forth; if, however, A.G. Edwards
shall not have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of
the number of Trust Preferred Securities to be purchased on such date, each of
the non-defaulting Underwriters shall be obligated, severally and not jointly,
to purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
number of Trust Preferred Securities to be purchased on such date, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either A.G. Edwards or the Offerors shall have the right to
postpone the Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements.
SECTION 11. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed
or transmitted by any standard form of telecommunication. Notices to
the Underwriters shall be directed to A.G. Edwards at One North Jefferson
Avenue, St. Louis, Missouri 63103, attention Robert P. Barnidge, and notices
to the Trust and the Company shall be directed to them at 700 North Adams
Street, P. O. Box 19001, Green Bay, Wisconsin 54307, attention
Ralph G. Baeten.
SECTION 12. PARTIES. This Agreement shall each inure to the benefit
of and be binding upon the Underwriters, the Company and the Trust, and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters, the Company and the Trust, and their respective
successors and the controlling persons and officers, directors and trustees
referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. This Agreement and all
conditions and provisions hereof are intended to be for the sole and exclusive
benefit of the Underwriters, the Company, and the Trust, and their
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respective successors, and said controlling persons and officers, directors
and trustees and their heirs and legal representatives, and for the benefit of
no other person, firm or corporation. No purchaser of Securities from any
Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SPECIFIED TIMES OF DAY REFER TO CENTRAL TIME.
SECTION 14. EFFECT OF HEADINGS. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Trust a counterpart
hereof, whereupon this instrument, along with all counterparts, will become
a binding agreement between the Underwriters, the Company and the Trust in
accordance with its terms.
Very truly yours,
WPS RESOURCES CORPORATION
By: /s/ Larry L. Weyers
-------------------
Name: Larry L. Weyers
Title: Chairman, President, and Chief
Executive Officer
WPSR CAPITAL TRUST I
By: WPS Resources Corporation,
as sponsor
By: /s/ Patrick D. Schrickel
------------------------
Name: Patrick D. Schrickel
Title: Executive Vice President
CONFIRMED AND ACCEPTED,
as of the date first above written:
A.G. EDWARDS & SONS, INC.
ROBERT W. BAIRD & CO. INCORPORATED
LEGG MASON WOOD WALKER, INCORPORATED
By: A.G. EDWARDS & SONS, INC.
By: /s/ Robert P. Barnidge
----------------------
Robert P. Barnidge
Managing Director
22
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SCHEDULE A
List of Underwriters
Number of Trust
Name of Underwriter Preferred Securities
------------------- --------------------
A. G. Edwards & Sons, Inc.. . . . . . . . . . . . . .666,668
Robert W. Baird & Co. Incorporated. . . . . . . . . .666,666
Legg Mason Wood Walker, Incorporated. . . . . . . . .666,666
---------
Total . . . . . . . . . . . . . . . . . . . . . . .2,000,000
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SCHEDULE B
Pricing Information
WPS Resources Corporation.
WPSR Capital Trust I
2,000,000
7.00% Trust Preferred Securities
1. The initial public offering price per security for the Trust
Preferred Securities, determined as provided in Section 2, shall be $25.
2. The purchase price per security for the Trust Preferred
Securities to be paid by the several Underwriters shall be $25.
3. The compensation per Trust Preferred Security to be paid by the
Company to the several Underwriters in respect of their commitments hereunder
shall be $0.7875 ($1,575,000 in the aggregate).
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EXHIBIT A
Form of Opinion of Offerors' Counsel
(To Be Delivered pursuant to Section 5(b))
(i) The Company, WPSC, ESI and PDI have each been duly incorporated
and are validly existing and in active status as corporations under the laws
of the State of Wisconsin with power and authority (corporate and other) to
own their properties and conduct their present businesses as described in the
Prospectus. To the best of such counsel's knowledge and information, each of
the Company and WPSC is duly qualified to do business as a foreign corporation
in good standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or to be in good standing
would not result in a Material Adverse Effect. The Company has corporate power
to enter into and perform its obligations under the Underwriting Agreement.
(ii) All of the issued and outstanding common stock of the Company,
WPSC, ESI and PDI has been duly and validly issued and is fully paid and
non-assessable, except with respect to wage claims of employees of the Company
as provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation
Law, as such statutory provision has been judicially interpreted. The Company
is the record owner of all of the issued and outstanding common stock of WPSC,
ESI, and PDI.
(iii) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company and the Trust.
(iv) The Declaration has been duly authorized, executed and delivered
by the Company and the Administrative Trustees, and constitutes a valid and
binding obligation of the Company and each of the Administrative Trustees,
enforceable against the Company and each of the Administrative Trustees in
accordance with its terms, except as enforcement thereof may be limited by the
Bankruptcy Exceptions; the Declaration conforms as to legal matters to the
description thereof in the Prospectus; the Declaration has been duly qualified
under the 1939 Act.
(v) The Trust Common Securities have been duly authorized and, when
issued, delivered and paid for in accordance with the Declaration and as
described in the Prospectus, will be validly issued, fully paid and
non-assessable undivided beneficial interests in the assets of the Trust; the
issuance of the Trust Common Securities is not subject to preemptive or other
similar rights; the Trust Common Securities conform as to legal matters to the
description thereof in the Prospectus.
(vi) The Trust Preferred Securities have been duly authorized, and when
issued, delivered and paid for by the Underwriters pursuant to the
Underwriting Agreement, will be validly issued, fully paid and non-assessable
undivided beneficial interests in the assets of the Trust; the issuance of
the Trust Preferred Securities is not subject to preemptive or other similar
rights; the Trust Preferred Securities conform as to legal matters to the
descriptions thereof in the Prospectus.
(vii) The Indenture has been duly authorized, executed and delivered by
the Company and constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by the Bankruptcy Exceptions; the Indenture
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<PAGE>
has been duly qualified under the 1939 Act; the Indenture conforms as to legal
matters to the description thereof in the Prospectus.
(viii) The Subordinated Debentures have been duly authorized,
executed and delivered by the Company, and when authenticated by the Trustee
in the manner provided in the Indenture and delivered against payment
therefor, will constitute valid and binding obligations of the Company
entitled to the benefits of the Indenture and enforceable against the Company
in accordance with their terms, except as enforcement thereof may be limited
by the Bankruptcy Exceptions; the Subordinated Debentures conform as to legal
matters to the description thereof in the Prospectus.
(ix) Each of the Guarantee Agreements has been duly authorized,
executed and delivered, and the Preferred Securities Guarantee Agreement
constitutes a valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as enforcement
thereof may be limited by the Bankruptcy Exceptions; the Preferred Securities
Guarantee Agreement has been duly qualified under the 1939 Act; the Guarantees
and the Guarantee Agreements conform as to legal matters to the descriptions
thereof in the Prospectus.
(x) Neither the Company nor the Trust is an "investment company" or an
entity "controlled" by an "investment company," as such terms are defined in
the 1940 Act.
(xi) The Registration Statement has been declared effective under the
1933 Act; any required filing of the Prospectus pursuant to Rule 424(b) has
been made in the manner and within the time period required by Rule 424 (b);
and, to the best of such counsel's knowledge and information, no stop order
suspending the effectiveness of the Registration Statement has been issued
under the 1933 Act and no proceedings for that purpose have been instituted or
are pending or threatened by the Commission.
(xii) The Registration Statement, the Prospectus, and each amendment or
supplement to the Registration Statement and Prospectus, excluding the
documents incorporated by reference therein, as of their respective effective
or issue dates (other than the financial statements and supporting schedules
included or incorporated by reference therein as to which such counsel need
express no opinion) complied as to form in all material respects with the
requirements of the 1933 Act, the 1933 Act Regulations, the 1939 Act and the
1939 Act Regulations.
(xiii) The documents incorporated by reference in the Prospectus
(other than the financial statements and supporting schedules included or
incorporated by reference therein as to which such counsel need express no
opinion), when they were filed with the Commission, complied as to form in all
material respects with the requirements of the 1934 Act and the 1934 Act
Regulations.
(xiv) All descriptions in the Registration Statement of contracts and
other documents to which the Company, its subsidiaries, or the Trust are
a party are accurate in all material respects; to the best of such counsel's
knowledge and information, there are no franchises, contracts, indentures,
mortgages, loan agreements, notes, leases or other instruments required to be
described or referred to in the Registration Statement or to be filed as
exhibits thereto other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto, and the descriptions thereof
are correct in all material respects.
26
<PAGE>
(xv) Such counsel's opinion set forth under "United States Federal
Income Taxation" is confirmed.
(xvi) To the best of such counsel's knowledge and information,
(a) neither the Company, WPSC, ESI or PDI is in violation of its charter or
by-laws, the Trust is not in violation of the Declaration, and (b) neither
the Company, WPSC, ESI, PDI or the Trust has defaulted in the due performance
or observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument that is described or referred to in the
Registration Statement or the Prospectus or filed or incorporated by reference
as an exhibit to the Registration Statement, which defaults remain uncured and
are, in the aggregate, material to the Company and its subsidiaries considered
as one enterprise, or to the Trust.
(xvii) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority (other than under the 1933 Act, the 1933 Act
Regulations, the 1939 Act and the 1939 Act Regulations, which have been
obtained, or as may be required under the securities or blue sky laws of the
various states, as to which such counsel need express no opinion) is
necessary or required in connection with the due authorization, execution and
delivery of the Underwriting Agreement, the offering, issuance, sale or
delivery of the Securities, the issuance and sale of the Trust Common
Securities, or the performance by the Company and the Trust of their
respective obligations pursuant to the Underwriting Agreement.
(xviii) To the best of such counsel's knowledge and other than set
forth in the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party or to which
any property of the Company or any of its subsidiaries is subject that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect; or which
might reasonably be expected to materially and adversely affect the
consummation of the transactions contemplated in the Underwriting Agreement
or the performance by the Company or the Trust of their respective
obligations thereunder and, to the best of knowledge of such counsel, no such
proceedings are overtly threatened by governmental authorities or others.
(xix) The execution, delivery and performance of the Underwriting
Agreement, the Declaration, the Indenture, and the Guarantee Agreements,
the consummation by the Company and the Trust of the transactions contemplated
thereby and in the Registration Statement (including the issuance and sale of
the Securities), the filing of the Certificate of Trust with the Secretary of
State of the State of Delaware, and compliance by the Company and the Trust
with the terms of the foregoing do not and will not, whether with or without
the giving of notice or lapse of time or both, conflict with or constitute a
breach of, or a default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or any
of its subsidiaries or the Trust pursuant to, any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or any other
agreement or instrument known to such counsel to which the Company or any of
its subsidiaries or the Trust is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Company or any of its
subsidiaries or the Trust is subject (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not have a Material
Adverse Effect), nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any of its
subsidiaries, or the Declaration, or any applicable law, statute, rule,
regulation, judgment, order, writ or decree, known to such counsel, of any
government, government instrumentality, or court (other than the securities or
blue sky laws of the various states, as to which such counsel need express no
opinion) (except for the indemnification
27
<PAGE>
provisions which may be unenforceable as against public policy under certain
circumstances), having jurisdiction over the Company or any of its
subsidiaries or the Trust or any of their respective properties, assets or
operations.
(xx) Each of the Company, WPSC, ESI, and PDI has statutory authority,
franchises, and consents free from burdensome restrictions and adequate for
the conduct of the business in which it is engaged as of the date hereof, as
described in the Prospectus, except to the extent that the absence of such
statutory authority or the failure to obtain such franchises or consents would
not have a Material Adverse Effect on the Company and its subsidiaries,
considered as one enterprise.
Such counsel should also state, in its opinion, that nothing has
come to its attention that leads it to believe that the Registration Statement
or any amendment thereto (except for financial statements and schedules and
other financial data included or incorporated by reference therein, as to
which such counsel need make no statement), at the time such Registration
Statement or any such amendment became effective, contained an untrue
statement of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not misleading
or that the Prospectus or any amendment or supplement thereto (except for
financial statements and schedules and other financial data included or
incorporated by reference therein, as to which such counsel need make no
statement), at the time the Prospectus was issued, at the time any such
amended or supplemented prospectus was issued or at the Closing Time, included
or includes an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel (A) may rely, as to
matters of Delaware law relating to the Trust, the Trust Securities and the
Declaration, upon the opinion of Richards, Layton & Finger, P.A., special
Delaware counsel to the Company and the Trust, which shall be delivered in
accordance with Section 5(c) of the Underwriting Agreement, (B) may assume, as
to matters of New York law relating to the Indenture, the Subordinated
Debentures, the Guarantee Agreements, and the Underwriting Agreement, that New
York law does not differ from Wisconsin law in any material respect and may
appropriately qualify its opinion with respect to the enforceability of the
choice of law provisions, and (C) may rely, as to matters of fact (but not as
to legal conclusions), to the extent it deems proper, on certificates of
responsible officers of the Company, the Trustees and public officials.
28
<PAGE>
EXHIBIT B
Form of Opinion of Special Delaware Counsel for the Company and the Trust
(To Be Delivered pursuant to Section 5(c))
(i) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Act, and all filings required
under the laws of the State of Delaware with respect to the creation and valid
existence of the Trust as a business trust have been made.
(ii) Under the Delaware Act and the Declaration, the Trust has the
trust power and authority to own property and conduct its business, all as
described in the Prospectus.
(iii) Under the Delaware Act and the Declaration, the Trust has the
trust power and authority to (a) execute and deliver, and to perform its
obligations under the Underwriting Agreement, (b) to issue and perform its
obligations under the Trust Securities and (c) to purchase and hold the
Subordinated Debentures.
(iv) Under the Delaware Act and the Declaration, the execution and
delivery by the Trust of the Underwriting Agreement and the performance by the
Trust of its obligations thereunder have been duly authorized by all necessary
trust action on the part of the Trust.
(v) The Declaration constitutes a valid and binding obligation of the
Company and the Trustees, and is enforceable against the Company and the
Trustees, in accordance with its terms, subject to the effect upon
enforceability of the Declaration of (i) applicable bankruptcy, insolvency,
reorganization, liquidation, moratorium, receivership, fraudulent conveyance
or transfer and other similar laws relating to or affecting the rights and
remedies of creditors generally, (ii) principles of equity, including
applicable law relating to fiduciary duties (regardless of whether considered
and applied in a proceeding in equity or at law), and (iii) the effect of
applicable public policy on the enforceability of provisions relating to
indemnification or contribution.
(vi) The Trust Preferred Securities have been duly authorized by the
Declaration, and when issued, delivered and paid for by the Underwriters
pursuant to the Underwriting Agreement will be validly issued, fully paid
and non-assessable undivided beneficial interests in the assets of the
Trust; the holders of the Trust Preferred Securities, as beneficial owners of
the Trust, will 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; provided that such
counsel may note that holders of Trust Preferred Securities will be required
to make certain payments described in the Declaration; under the Delaware Act,
the certificate attached to the Declaration as Exhibit A-l is an appropriate
form of certificate to evidence ownership of the Trust Preferred Securities.
(vii) The Trust Common Securities have been duly authorized by the
Declaration and, when issued, delivered and paid for in accordance with the
Declaration and as described in the Prospectus, will be validly issued and
fully paid undivided beneficial interests in the assets of the Trust.
(viii) Under the Delaware Act and the Declaration, the issuance of
the Trust Securities is not subject to preemptive or other similar rights.
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<PAGE>
(ix) The issuance and sale by the Trust of the Trust Securities, the
purchase by the Trust of the Subordinated Debentures, the execution,
delivery and performance by the Trust of the Underwriting Agreement, the
consummation by the Trust of the transactions contemplated thereby and the
compliance by the Trust with its obligations thereunder do not violate (i) any
of the provisions of the Certificate of Trust or the Declaration or (ii) any
applicable Delaware law or administrative regulation.
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EXHIBIT C
Form of Opinion of Counsel for Property Trustee
Guarantee Trustee and Debt Trustee
(To Be Delivered pursuant to Section 5(e))
(i) State Street Bank and Trust Company is a trust company, duly
organized, validly existing and in good standing under the laws of the
Commonwealth of Massachusetts, with all necessary power and authority to
execute and deliver, and to carry out and perform its obligations under the
terms of the Declaration, the Guarantee Agreements and the Indenture.
(ii) The execution, delivery and performance by the Property Trustee
of the Declaration, the execution, delivery and performance by the Guarantee
Trustee of the Guarantee Agreements and the execution, delivery and
performance by the Debt Trustee of the Indenture have been duly authorized by
all necessary corporate action on the part of the Property Trustee, the
Guarantee Trustee and the Debt Trustee, respectively. The Declaration, the
Guarantee Agreements and the Indenture have been duly executed and delivered
by the Property Trustee, the Guarantee Trustee and the Debt Trustee,
respectively, and the Declaration, the Guarantee Agreements and the Indenture
constitute legal, valid and binding obligations of the Property Trustee, the
Guarantee Trustee, and the Indenture Trustee, respectively, enforceable
against the Property Trustee, the Guarantee Trustee and the Indenture Trustee,
respectively, in accordance with its terms, subject in each case to (i)
applicable bankruptcy, insolvency, reorganization, liquidation, moratorium,
receivership, fraudulent conveyance or transfer and other similar laws
relating to or affecting the rights and remedies of creditors generally, (ii)
principles of equity, including applicable law relating to fiduciary duties
(regardless of whether considered and applied in a proceeding in equity or at
law), and (iii) considerations of public policy or the effect of applicable
law relating to fiduciary duties.
(iii) The execution, delivery and performance of the Declaration, the
Guarantee Agreement and the Indenture by the Property Trustee, the Guarantee
Trustee and the Debt Trustee, respectively, do not conflict with or constitute
a breach of the charter or bylaws of the Property Trustee, the Guarantee
Trustee or the Debt Trustee, respectively, or, to the best of such counsel's
knowledge, without independent investigation, the terms of any indenture or
other agreement or instrument to which the Property Trustee, the Guarantee
Trustee or the Debt Trustee, respectively, is a party or is bound or
any judgment, order or decree to be applicable to the Property Trustee, the
Guarantee Trustee or the Debt Trustee, respectively, of any court, regulatory
body, administrative agency, governmental body or arbitrator having
jurisdiction over the Property Trustee, the Guarantee Trustee or the Debt
Trustee, respectively.
(iv) No consent, approval or authorization of, or registration with
or notice to, any federal or Massachusetts banking authority is required for
the execution, delivery or performance by the Property Trustee, the Guarantee
Trustee or the Debt Trustee of the Declaration, the Guarantee Agreements or
the Indenture, respectively.
31
<PAGE>
EXHIBIT D
Form of Opinion of Counsel for Delaware Trustee
(To Be Delivered pursuant to Section 5(e))
(i) First Union Trust Company, National Association, is a national
banking association, with trust powers, with its principal place of business
in the State of Delaware, and is duly incorporated, validly existing and in
good standing under the laws of the United States with all necessary power and
authority to execute and deliver, and to carry out and perform its obligations
under the terms of the Declaration.
(ii) The execution, delivery and performance by the Delaware Trustee
of the Declaration have been duly authorized by all necessary corporate action
on the part of the Delaware Trustee. The Declaration has been duly executed
and delivered by the Delaware Trustee and constitutes the legal, valid and
binding obligation of the Delaware Trustee, enforceable against the Delaware
Trustee in accordance with its terms, subject to (i) applicable bankruptcy,
insolvency, reorganization, liquidation, moratorium, receivership, fraudulent
conveyance or transfer and other similar laws relating to or affecting the
rights and remedies of creditors generally, (ii) principles of equity,
including applicable law relating to fiduciary duties (regardless of whether
considered and applied in a proceeding in equity or at law), and (iii) the
effect of applicable public policy on the enforceability of provisions
relating to indemnification or contribution.
(iii) The execution, delivery and performance of the Declaration do not
conflict with or constitute a breach of the charter or bylaws of the Delaware
Trustee or, to the best of such counsel's knowledge, without independent
investigation, the terms of any indenture or other agreement or instrument to
which the Delaware Trustee is a party or is bound or, to the best of such
counsel's knowledge, without independent investigation, any judgment, order or
decree applicable to the Delaware Trustee of any court, regulatory body,
administrative agency, governmental body or arbitrator of the State of
Delaware having jurisdiction over the banking and trust powers of the
Delaware Trustee.
(iv) No consent, approval or authorization of, or registration with
or notice to, any federal or Delaware banking authority is required for the
execution, delivery or performance of the Declaration by the Delaware Trustee,
other than the filing of the Certificate of Trust with the Delaware Secretary
of State.
32
<PAGE>
EXHIBIT 4.1
===========================================================================
AMENDED AND RESTATED DECLARATION
OF TRUST
WPSR CAPITAL TRUST I
DATED AS OF JULY 30, 1998
===========================================================================
<PAGE>
TABLE OF CONTENTS
ARTICLE I INTERPRETATION AND DEFINITIONS . . . . . . . . . . . . . . . . 1
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2 Interpretation. . . . . . . . . . . . . . . . . . . . 7
ARTICLE II TRUST INDENTURE ACT . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.1 Trust Indenture Act; Application. . . . . . . . . . . 7
SECTION 2.2 Lists of Holders of Trust Securities. . . . . . . . . 7
SECTION 2.3 Reports by the Property Trustee . . . . . . . . . . . 8
SECTION 2.4 Periodic Reports to Property Trustee. . . . . . . . . 8
SECTION 2.5 Evidence of Compliance with Conditions Precedent. . . 8
SECTION 2.6 Events of Default; Waiver . . . . . . . . . . . . . . 8
SECTION 2.7 Event of Default; Notice. . . . . . . . . . . . . . . 10
ARTICLE III ORGANIZATION . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 3.1 Name. . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 3.2 Office. . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 3.3 Purpose . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 3.4 Authority . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 3.5 Title to Property of the Trust. . . . . . . . . . . . 11
SECTION 3.6 Powers and Duties of the Administrative Trustees. . . 11
SECTION 3.7 Prohibition of Actions by the Trust and the
Trustees. . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3.8 Powers and Duties of the Property Trustee . . . . . . 14
SECTION 3.9 Certain Duties and Responsibilities of the
Property Trustee. . . . . . . . . . . . . . . . . . . 16
SECTION 3.10 Certain Rights of the Property Trustee. . . . . . . . 17
SECTION 3.11 Delaware Trustee. . . . . . . . . . . . . . . . . . . 19
SECTION 3.12 Execution of Documents. . . . . . . . . . . . . . . . 19
SECTION 3.13 Not Responsible for Recitals or Issuance of Trust
Securities. . . . . . . . . . . . . . . . . . . . . . 19
SECTION 3.14 Duration of Trust . . . . . . . . . . . . . . . . . . 19
SECTION 3.15 Mergers . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE IV SPONSOR . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 4.1 Sponsor's Purchase of Trust Common Securities . . . . 21
SECTION 4.2 Responsibilities of the Sponsor . . . . . . . . . . . 21
ARTICLE V TRUSTEES . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 5.1 Number of Trustees. . . . . . . . . . . . . . . . . . 22
SECTION 5.2 Delaware Trustee. . . . . . . . . . . . . . . . . . . 22
SECTION 5.3 Property Trustee; Eligibility . . . . . . . . . . . . 23
SECTION 5.4 Qualifications of Administrative Trustees
and Delaware Trustee Generally. . . . . . . . . . . . 23
SECTION 5.5 Initial Trustees. . . . . . . . . . . . . . . . . . . 24
SECTION 5.6 Appointment, Removal and Resignation of Trustees. . . 24
SECTION 5.7 Vacancies among Trustees. . . . . . . . . . . . . . . 25
SECTION 5.8 Effect of Vacancies . . . . . . . . . . . . . . . . . 26
SECTION 5.9 Meetings. . . . . . . . . . . . . . . . . . . . . . . 26
-i-
<PAGE>
SECTION 5.10 Delegation of Power . . . . . . . . . . . . . . . . . 26
SECTION 5.11 Merger, Conversion, Consolidation or Succession
to Business . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE VI DISTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 6.1 Distributions . . . . . . . . . . . . . . . . . . . . 27
SECTION 6.2 Payments under Indenture or Pursuant to Direct
Actions . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE VII ISSUANCE OF TRUST PREFERRED SECURITIES . . . . . . . . . . . 27
SECTION 7.1 General Provisions Regarding Trust Securities . . . . 27
SECTION 7.2 Paying Agent. . . . . . . . . . . . . . . . . . . . . 28
ARTICLE VIII DISSOLUTION OF TRUST. . . . . . . . . . . . . . . . . . . . 28
SECTION 8.1 Dissolution of Trust. . . . . . . . . . . . . . . . . 28
ARTICLE IX TRANSFER OF INTERESTS . . . . . . . . . . . . . . . . . . . . 29
SECTION 9.1 Transfer of Trust Securities. . . . . . . . . . . . . 29
SECTION 9.2 Transfer of Certificates. . . . . . . . . . . . . . . 30
SECTION 9.3 Deemed Trust Security Holders . . . . . . . . . . . . 30
SECTION 9.4 Book Entry Interests. . . . . . . . . . . . . . . . . 30
SECTION 9.5 Notices to Clearing Agency. . . . . . . . . . . . . . 31
SECTION 9.6 Appointment of Successor Clearing Agency. . . . . . . 31
SECTION 9.7 Definitive Trust Preferred Security Certificates. . . 31
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates . . 32
ARTICLE X LIMITATION OF LIABILITY OF HOLDERS OF TRUST SECURITIES,
TRUSTEES OR OTHERS . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 10.1 Liability . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 10.2 Exculpation . . . . . . . . . . . . . . . . . . . . . 33
SECTION 10.3 Fiduciary Duty. . . . . . . . . . . . . . . . . . . . 33
SECTION 10.4 Indemnification . . . . . . . . . . . . . . . . . . . 34
SECTION 10.5 Outside Businesses. . . . . . . . . . . . . . . . . . 35
ARTICLE XI ACCOUNTING . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 11.1 Fiscal Year . . . . . . . . . . . . . . . . . . . . . 35
SECTION 11.2 Certain Accounting Matters. . . . . . . . . . . . . . 35
SECTION 11.3 Banking . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 11.4 Withholding . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE XII AMENDMENTS AND MEETINGS. . . . . . . . . . . . . . . . . . . 36
SECTION 12.1 Amendments. . . . . . . . . . . . . . . . . . . . . . 36
SECTION 12.2 Meetings of the Holders of Trust Securities;
Action by Written Consent . . . . . . . . . . . . . . 38
ARTICLE XIII REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE . . 39
SECTION 13.1 Representations and Warranties of Property Trustee. . 39
SECTION 13.2 Representations and Warranties of Delaware Trustee. . 40
-ii-
<PAGE>
ARTICLE XIV MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 14.1 Notices . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 14.2 Governing Law . . . . . . . . . . . . . . . . . . . . 42
SECTION 14.3 Intention of the Parties. . . . . . . . . . . . . . . 42
SECTION 14.4 Headings. . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 14.5 Successors and Assigns. . . . . . . . . . . . . . . . 42
SECTION 14.6 Partial Enforceability. . . . . . . . . . . . . . . . 42
SECTION 14.7 Counterparts. . . . . . . . . . . . . . . . . . . . . 43
SECTION 14.8 Incorporation by Reference of Annex I . . . . . . . . 43
-iii-
<PAGE>
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Declaration
- ------------------- -----------
310(a) . . . . . . . . . . . . . . . . . . . . . . . . 5.3(a)
310(b) . . . . . . . . . . . . . . . . . . . . . . . . 5.3(c)
310(c) . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(c) . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . 2.2(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
313. . . . . . . . . . . . . . . . . . . . . . . . . . 2.3
314(a) . . . . . . . . . . . . . . . . . . . . . . . . 2.4
314(b) . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c) . . . . . . . . . . . . . . . . . . . . . . . . 2.5
314(d) . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(f) . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
315(a) . . . . . . . . . . . . . . . . . . . . . . . . 3.9(b)
315(b) . . . . . . . . . . . . . . . . . . . . . . . . 2.7
315(c) . . . . . . . . . . . . . . . . . . . . . . . . 3.9(a)
315(d) . . . . . . . . . . . . . . . . . . . . . . . . 3.9(a)
316(a) . . . . . . . . . . . . . . . . . . . . . . . . Exhibit A, 2.6
316(c) . . . . . . . . . . . . . . . . . . . . . . . . 3.6(e)
- -------------------
* This Cross-Reference Table does not constitute part of the Declaration
and shall not affect the interpretation of any of its terms or provisions.
-iv-
<PAGE>
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
WPSR CAPITAL TRUST I
THIS AMENDED AND RESTATED DECLARATION OF TRUST (this "Declaration")
dated and effective as of July 30, 1998, by and among WPS Resources
Corporation, a Wisconsin corporation, as Sponsor, and Daniel P. Bittner, and
Ralph G. Baeten, and State Street Bank and Trust Company, a Massachusetts
trust company with its principal office located in Boston, Massachusetts, and
First Union Trust Company, National Association, a national banking
association with its principal office located in Wilmington, Delaware, not in
their individual capacities, but solely as trustees of the Trust, as defined
below (collectively, the "Trustees"), and the holders, from time to time, of
undivided beneficial interests in the assets of the Trust to be issued
pursuant to this Declaration.
WHEREAS, the Trustees and the Sponsor established WPSR Capital Trust I
(the "Trust"), a trust under the Delaware Business Trust Act pursuant to a
Declaration of Trust, dated as of June 9, 1998 (the "Original Declaration"),
and a Certificate of Trust filed with the Secretary of State of the State of
Delaware on June 9, 1998, for the sole purpose of issuing and selling certain
securities representing undivided beneficial interests in the assets of the
Trust and investing the proceeds thereof in certain Debentures of the
Debenture Issuer; and
WHEREAS, all of the Trustees and the Sponsor, by this Declaration, amend
and restate each and every term and provision of the Original Declaration.
NOW, THEREFORE, it being the intention of the parties hereto to continue
the Trust as a business trust under the Delaware Business Trust Act, and that
this Declaration constitute the governing instrument of such business trust,
the Trustees declare that all assets contributed to the Trust will be held in
trust for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions.
-----------
(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this
Section 1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to
this Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles and Sections and
Annexes and Exhibits are to Articles and Sections of, and Annexes and Exhibits
to, this Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Declaration unless otherwise defined in this Declaration or
unless the context otherwise requires; and
<PAGE>
(f) a reference to the singular includes the plural and vice versa.
"Administrative Trustee" means any Trustee other than the Property
----------------------
Trustee and the Delaware Trustee.
"Affiliate" has the same meaning as given to that term in Rule 405
---------
of the Securities Act or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is
------------------
authorized to bind such Person.
"Book Entry Interest" means a beneficial interest in a Global
-------------------
Certificate, ownership and transfers of which shall be maintained and
made through book entries by a Clearing Agency as described in
Section 9.4.
"Business Day" means any day other than a day on which state or
------------
federal banking institutions in New York, New York or Boston,
Massachusetts are authorized or required by law, executive order or
regulation to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
------------------
Code, 12 Del. Code Section 3801 et seq., as it may be amended from time
to time, or any successor legislation.
"Certificate" means a Trust Common Security Certificate or a Trust
-----------
Preferred Security Certificate.
"Clearing Agency" means an organization registered as a "Clearing
---------------
Agency" pursuant to Section 17A of the Exchange Act that is acting as
depositary for the Trust Preferred Securities and in whose name or in
the name of a nominee of that organization a Global Certificate shall be
registered and which shall undertake to effect book entry transfers and
pledges of the Trust Preferred Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other
---------------------------
financial institution or other Person for whom from time to time the
Clearing Agency effects book entry transfers and pledges of securities
deposited with the Clearing Agency.
"Closing Date" means July 30, 1998.
------------
"Code" means the Internal Revenue Code of 1986, as amended from
----
time to time, or any successor legislation. A reference to a specific
section of the Code refers not only to such specific section but also to
any corresponding provision of any federal tax statute enacted after the
date of this Declaration, as such specific section or corresponding
provision is in effect on the date of application of the provisions of
this Declaration containing such reference.
"Commission" means the Securities and Exchange Commission.
----------
"Corporate Trust Office" means the office of the Property Trustee
----------------------
at which the corporate trust business of the Property Trustee, the Debt
Trustee and the Trust Preferred Securities Guarantee Trustee shall, at
any particular time, be principally administered, which office at the
date of execution of this Declaration is located at Two International
Place, 4th Floor, Boston, Massachusetts 02110.
-2-
<PAGE>
"Covered Person" means: (a) any officer, director, shareholder,
--------------
partner, member, representative, employee or agent of (i) the Trust or
(ii) the Trust's Affiliates and (b) any Holder of Trust Securities.
"Debenture Issuer" means WPS Resources Corporation in its
----------------
capacity as issuer of the Debentures under the Indenture.
"Debentures" means the series of Debentures to be issued by the
----------
Debenture Issuer under the Indenture to be held by the Property Trustee,
for which a specimen certificate is included as Exhibit B.
"Debt Trustee" means State Street Bank and Trust Company, Boston
------------
Massachusetts, not in its individual capacity but solely as trustee
under the Indenture until a successor is appointed thereunder, and
thereafter means such successor trustee.
"Definitive Trust Preferred Security Certificates" has the meaning
------------------------------------------------
set forth in Section 9.4.
"Delaware Trustee" has the meaning set forth in Section 5.2.
----------------
"Direction" by a Person means a written direction signed: (a) if
---------
the Person is a natural person, by that Person; or (b) in any other
case, in the name of such Person by one or more Authorized Officers of
that Person.
"Distribution" means a distribution payable to Holders of Trust
------------
Securities in accordance with Section 6.1.
"Event of Default" in respect of the Trust Securities means an
----------------
Event of Default (as defined in the Indenture) has occurred and is
continuing in respect of the Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as
------------
amended from time to time, or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in
----------------------------
Section 10.4(b).
"Fiscal Year" has the meaning set forth in Section 11.1.
-----------
"Global Certificate" has the meaning set forth in Section 9.4.
------------------
"Holder" means a Person in whose name a Certificate representing a
------
Trust Security is registered, such Person being a beneficial owner
within the meaning of the Business Trust Act.
"Indemnified Person" means a WPSR Indemnified Person or a
------------------
Fiduciary Indemnified Person.
"Indenture" means the Indenture dated as of July 30, 1998, between
---------
the Debenture Issuer and the Debt Trustee, and any indenture
supplemental thereto pursuant to which the Debentures are to be issued.
-3-
<PAGE>
"Investment Company" means an investment company as defined in the
------------------
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940,
----------------------
as amended from time to time, or any successor legislation.
"Investment Company Event" has the meaning set forth in Annex I
------------------------
hereto.
"Legal Action" has the meaning set forth in Section 3.6(g).
------------
"List of Holders" has the meaning set forth in Section 2.2.
---------------
"Majority in liquidation amount of the Trust Securities" means,
------------------------------------------------------
except as provided in the terms of the Trust Preferred Securities or by
the Trust Indenture Act, Holder(s) of outstanding Trust Securities
voting together as a single class or, as the context may require,
Holders of outstanding Trust Preferred Securities or Holders of
outstanding Trust Common Securities voting separately as a class, who
are the record owners of more than 50% of the aggregate liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the
date upon which the voting percentages are determined) of all
outstanding Trust Securities of the relevant class.
"Officers' Certificate" means, with respect to any Person, a
---------------------
certificate signed by two Authorized Officers of such Person. Any
Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Declaration 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.
"Paying Agent" has the meaning specified in Section 3.8(h).
------------
"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.
"Property Trustee" means the Trustee meeting the eligibility
----------------
requirements set forth in Section 5.3.
"Property Trustee Account" has the meaning set forth in Section
------------------------
3.8(c).
-4-
<PAGE>
"Quorum" means a majority of the Administrative Trustees or, if
------
there are only two Administrative Trustees, both of them.
"Related Party" means, with respect to the Sponsor, any direct or
-------------
indirect wholly owned subsidiary of the Sponsor or any other Person that
owns, directly or indirectly, 100% of the outstanding voting securities
of the Sponsor.
"Responsible Officer" means, with respect to the Property Trustee,
-------------------
the chairman of the board of directors, the 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 other officer of the Property
Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter
is referred because of that officer's knowledge of and familiarity with
the particular subject.
"Rule 3a-5" and Rule 3a-7" mean respectively, Rule 3a-5 and Rule
------------------------
3a-7 under the Investment Company Act or any successor rule thereunder.
"Securities Act" means the Securities Act of 1933, as amended from
--------------
time to time, or any successor legislation.
"Sponsor" means WPS Resources Corporation, a Wisconsin
-------
corporation, or any successor entity in a merger, consolidation or
amalgamation, in its capacity as sponsor of the Trust.
"Successor Property Trustee" means a successor Trustee possessing
--------------------------
the qualifications to act as Property Trustee under Section 5.3(a).
"Super Majority" has the meaning set forth in Section 2.6(a)(ii).
--------------
"Tax Event" has the meaning set forth in Annex I hereto.
---------
"10% in liquidation amount of the Trust Securities" means, except
-------------------------------------------------
as provided in the terms of the Trust Securities or by the Trust
Indenture Act, Holder(s) of outstanding Trust Securities voting together
as a single class or, as the context may require, Holders of outstanding
Trust Preferred Securities or Holders of outstanding Trust Common
Securities, voting separately as a class, who are the record owners of
10% or more of the aggregate liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions to the date upon which the voting
percentages are determined) of all outstanding Trust Securities of the
relevant class.
"Treasury Regulations" means the income tax regulations, including
--------------------
temporary and proposed regulations, promulgated under the Code by the
United States Treasury, as such regulations may be amended from time to
time (including corresponding provisions of succeeding regulations).
"Trustee" or "Trustees" means each Person who has signed this
------- --------
Declaration as a trustee, so long as such Person shall continue in
office in accordance with the terms hereof, and all other Persons who
may from time to time be duly appointed, qualified and serving as
Trustees in accordance with
-5-
<PAGE>
the provisions hereof, and references herein to a Trustee or the
Trustees shall refer to such Person or Persons solely in their capacity
as trustees hereunder.
"Trust Common Securities" has the meaning specified in
-----------------------
Section 7.1.
"Trust Common Security Certificate" means a definitive certificate
---------------------------------
in fully registered form representing a Trust Common Security
substantially in the form of Exhibit A-2.
"Trust Common Securities Guarantee" means the guaranty agreement
---------------------------------
to be dated as of July 30, 1998 of the Sponsor in respect to the Trust
Common Securities.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
-------------------
amended from time to time, or any successor legislation.
"Trust Preferred Securities Guarantee" means the guaranty
------------------------------------
agreement to be dated as of July 30, 1998, of the Sponsor in respect of
the Trust Preferred Securities.
"Trust Preferred Securities" has the meaning specified in
--------------------------
Section 7.1.
"Trust Preferred Security Beneficial Owner" means, with respect to
-----------------------------------------
a Book Entry Interest, a Person who is the beneficial owner of such Book
Entry Interest, as reflected on the books of the Clearing Agency, or on
the books of a Person maintaining an account with such Clearing Agency
(directly as a Clearing Agency Participant or as an indirect
participant, in each case in accordance with the rules of such Clearing
Agency).
"Trust Preferred Security Certificate" means a certificate
------------------------------------
representing a Trust Preferred Security substantially in the form of
Exhibit A-1.
"Trust Preferred Securities Guarantee Trustee" means State Street
--------------------------------------------
Bank and Trust Company, Boston Massachusetts, not in its individual
capacity but solely as trustee under the Trust Preferred Securities
Guarantee until a successor is appointed thereunder, and thereafter
means such successor trustee.
"Trust Securities" means the Trust Common Securities and the Trust
----------------
Preferred Securities.
"Trust Securities Guarantee" means each of the Trust Common
--------------------------
Securities Guarantee and the Trust Preferred Securities Guarantee.
"Underwriting Agreement" means the Underwriting Agreement for the
----------------------
offering and sale of Trust Preferred Securities in substantially the
form of Exhibit C.
"WPSR Indemnified Person" means (a) any Administrative Trustee,
-----------------------
(b) any Affiliate of any Administrative Trustee, (c) any officers,
directors, shareholders, members, partners, employees, representatives,
or agents of any Administrative Trustee or any Affiliate thereof, or (d)
any officer, employee or agent of the Trust or its Affiliates.
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SECTION 1.2 Interpretation.
--------------
References to the neuter gender include the masculine and feminine,
where appropriate. Terms which relate to accounting matters shall be
interpreted in accordance with generally accepted accounting principles in
effect from time to time. References to any statute mean such statute, as
amended at the time, and include any successor legislation. The word "or" is
not exclusive, and the words "herein," "hereof," and "hereunder" refer to this
Declaration as a whole.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
--------------------------------
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration 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 and to the extent that any provision of this Declaration
limits, qualifies or conflicts with the duties imposed by sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this Declaration
shall not affect the Trust's classification as a grantor trust for United
States Federal income tax purposes and shall not affect the nature of the
Trust Securities as equity securities representing undivided beneficial
interests in the assets of the Trust.
SECTION 2.2 Lists of Holders of Trust Securities.
------------------------------------
(a) Each of the Sponsor and the Administrative Trustees, on behalf of
the Trust, shall provide the Property Trustee (i) within fourteen (14) days
after each record date for payment of Distributions, a list, in such form as
the Property Trustee may reasonably require, of the names and addresses of the
Holders of the Trust Securities ("List of Holders") as of such record date,
provided that neither the Sponsor nor the Administrative Trustees, on behalf
of the Trust, shall be obligated to provide such List of Holders at any time
the List of Holders does not differ from the most recent List of Holders given
to the Property Trustee by the Sponsor and the Administrative Trustees, on
behalf of the Trust, and (ii) at any other time, within thirty (30) days of
receipt by the Trust of a written request from the Property Trustee for a List
of Holders as of a date no more than fourteen (14) days before such List of
Holders is given to the Property Trustee. The Property Trustee shall preserve,
in as current a form as is reasonably practicable, all information contained
in Lists of Holders given to it or which it receives in the capacity as Paying
Agent (if acting in such capacity); provided that the Property Trustee may
destroy any List of Holders previously given to it on receipt of a new List of
Holders.
(b) The Property Trustee shall comply with its obligations under
sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
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<PAGE>
SECTION 2.3 Reports by the Property Trustee.
-------------------------------
On or before July 15 of each year the Property Trustee shall provide to
the Holders of the Trust Preferred Securities such reports as are required by
section 313 of the Trust Indenture Act, if any, in the form and in the manner
provided by section 313 of the Trust Indenture Act. The Property Trustee
shall also comply with the requirements of section 313(d) of the Trust
Indenture Act.
SECTION 2.4 Periodic Reports to Property Trustee.
------------------------------------
Each of the Sponsor 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 (if any) 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.
------------------------------------------------
Each of the Sponsor 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 Declaration 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.
-------------------------
(a) The Holders of a Majority in liquidation amount of Trust Preferred
Securities may, by vote, on behalf of the Holders of all of the Trust
Preferred Securities, waive any past Event of Default in respect of the Trust
Preferred Securities and its consequences, provided that, if the underlying
Event of Default under the Indenture:
(i) is not waivable under the Indenture, the Event of Default
under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority in
principal amount of the holders of the Debentures (a "Super Majority")
to be waived under the Indenture, the Event of Default under the
Declaration may only be waived by the vote of the Holders of at least
the proportion in liquidation amount of the Trust Preferred Securities
that the relevant Super Majority represents of the aggregate principal
amount of the Debentures outstanding.
The foregoing provisions of this Section 2.6(a) shall be in lieu of section
316(a)(1)(B) of the Trust Indenture Act, and such section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Declaration and the
Trust Securities, as permitted by the Trust Indenture Act. Upon such waiver,
any such default shall cease to exist, and any Event of Default with respect
to the Trust Preferred Securities arising therefrom shall be deemed to have
been cured, for every purpose of this Declaration, but no such waiver shall
extend to any subsequent or other default or an Event of Default with respect
to the Trust Preferred Securities or impair any right consequent thereon. Any
waiver by the Holders of the Trust Preferred Securities of an Event of Default
with respect to the Trust Preferred Securities shall also be deemed to
constitute a waiver by the Holders of the Trust Common Securities of any such
Event of Default with respect to the Trust Common Securities for all purposes
of this Declaration without any further act, vote, or consent of the Holders
of the Trust Common Securities.
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<PAGE>
(b) The Holders of a Majority in liquidation amount of the
Trust Common Securities may, by vote, on behalf of the Holders of all of the
Trust Common Securities, waive any past Event of Default with respect to the
Trust Common Securities and its consequences, provided that, if the underlying
-------- ----
Event of Default under the Indenture:
(i) is not waivable under the Indenture, except where the
Holders of the Trust Common Securities are deemed to have waived such
Event of Default under the Declaration as provided below in this Section
2.6(b), the Event of Default under the Declaration shall also not be
waivable; or
(ii) requires the consent or vote of a Super Majority to be
waived, except where the Holders of the Trust Common Securities are
deemed to have waived such Event of Default under the Declaration as
provided below in this Section 2.6(b), the Event of Default under the
Declaration may only be waived by the vote of the Holders of at least
the proportion in liquidation amount of the Trust Common Securities that
the relevant Super Majority represents of the aggregate principal amount
of the Debentures outstanding;
provided further, each Holder of Trust Common Securities will be deemed to
- --------
have waived any such Event of Default and all Events of Default with respect
to the Trust Common Securities and its consequences until all Events of
Default with respect to the Trust Preferred Securities have been cured, waived
or otherwise eliminated, and until such Events of Default have been so cured,
waived or otherwise eliminated, the Property Trustee will be deemed to be
acting solely on behalf of the Holders of the Trust Preferred Securities and
only the Holders of the Trust Preferred Securities will have the right to
direct the Property Trustee in accordance with the terms of the Trust
Securities. The foregoing provisions of this Section 2.6(b) shall be in lieu
of sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act, and such
sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby
expressly excluded from this Declaration and the Trust Securities, as
permitted by the Trust Indenture Act. Subject to the foregoing provisions of
this Section 2.6(b), upon such waiver, any such default shall cease to exist,
and any Event of Default with respect to the Trust Common Securities arising
therefrom shall be deemed to have been cured for every purpose of this
Declaration, but no such waiver shall extend to any subsequent or other
default or Event of Default with respect to the Trust Common Securities or
impair any right consequent thereon.
(c) A waiver of an Event of Default under the Indenture by the
Property Trustee at the direction of the Holders of the Trust Preferred
Securities constitutes a waiver of the corresponding Event of Default under
this Declaration. The foregoing provisions of this Section 2.6(c) shall be in
lieu of section 316(a)(1)(B) of the Trust Indenture Act, and such section
316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from this
Declaration and the Trust Securities, as permitted by the Trust Indenture Act.
SECTION 2.7 Event of Default; Notice.
------------------------
(a) The Property Trustee shall, within ninety (90) days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders of the Trust Securities, notices of all defaults with
respect to the Trust Securities known to the Property Trustee, unless such
defaults have been cured before the giving of such notice (the term "defaults"
for the purposes of this Section 2.7(a) being hereby defined to be an Event of
Default as defined in the Indenture, not including any periods of grace
provided for therein and irrespective of the giving of any notice provided
therein); provided that, except for a default in the payment of principal of
-------- ----
(or premium, if any) or interest on any of the Debentures or in the payment of
any sinking fund installment established for the Debentures, the Property
Trustee shall be protected in withholding such notice
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<PAGE>
if and so long as a the board of directors, the executive committee, or a
trust committee of directors and/or Responsible Officer of the Property
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders of the Trust Securities.
(b) The Property Trustee shall not be deemed to have knowledge of any
default except:
(i) a default under Sections 6.01(a)(1) and 6.01(a)(2) of the
Indenture; or
(ii) any default as to which the Property Trustee shall have
received written notice or of which a Responsible Officer of the
Property Trustee charged with the administration of the Declaration
shall have actual knowledge.
ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
----
The Trust is named "WPSR Capital Trust I," as such name may be modified
from time to time by the Administrative Trustees following written notice to
the Holders of Trust Securities. The Trust's activities may be conducted
under the name of the Trust or any other name deemed advisable by the
Administrative Trustees.
SECTION 3.2 Office.
------
The address of the principal office of the Trust is c/o WPS Resources
Corporation, 700 North Adams Street, P.O. Box 19001, Green Bay, Wisconsin
54307-9001. On ten (10) Business Days' prior written notice to the Holders of
Trust Securities, the Administrative Trustees may designate another principal
office.
SECTION 3.3 Purpose.
-------
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) except as otherwise limited herein, to engage in only
those other activities necessary or incidental thereto. The Trust shall not
borrow money, issue debt or reinvest proceeds derived from investments, pledge
any of its assets, or otherwise undertake (or permit to be undertaken) any
activity that would cause the Trust not to be classified for United States
federal income tax purposes as a grantor trust.
The Trust will be classified as a grantor trust for United States
federal income tax purposes under Subpart E of Subchapter J of the Code,
pursuant to which the owners of the Trust Preferred Securities and the Trust
Common Securities will be the owners of the Trust for United States federal
income tax purposes, and such owners will include directly in their gross
income the income, deductions and credits of the Trust as if the Trust did not
exist. By the acceptance of this Trust, none of the Trustees, the Sponsor,
the Holders of the Trust Preferred Securities or Trust Common Securities or
the Trust Preferred Securities Beneficial Owners will take any position for
United States federal income tax purposes which is contrary to the
classification of the Trust as a grantor trust or the Debentures as
indebtedness and the Trust Preferred Securities and Trust Common Securities as
evidence of an undivided beneficial interest in the Debentures.
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<PAGE>
SECTION 3.4 Authority.
---------
Subject to the limitations provided in this Declaration and to the
specific duties of the Property Trustee, the Administrative Trustees shall
have exclusive and complete authority to carry out the purposes of the Trust.
An action taken by the Administrative Trustees in accordance with their powers
shall constitute the act of and serve to bind the Trust, and an action taken
by the Property Trustee, on behalf of the Trust, in accordance with its powers
shall constitute the act of and serve to bind the Trust. In dealing with a
Trustee or the Trustees acting on behalf of the Trust, no Person shall be
required to inquire into the authority of such Trustee or Trustees to bind the
Trust. Persons dealing with the Trust are entitled to rely conclusively on
the power and authority of a Trustee or the Trustees as set forth in this
Declaration.
SECTION 3.5 Title to Property of the Trust.
------------------------------
Legal title to all assets of the Trust shall be vested in the Property
Trustee and shall be administered by the Property Trustee for the benefit of
the Holders in accordance with this Declaration. The Holders shall not have
legal title to any part of the assets of the Trust, but shall have an
undivided beneficial interest in the assets of the Trust.
SECTION 3.6 Powers and Duties of the Administrative Trustees.
------------------------------------------------
The Administrative Trustees shall have the exclusive power, duty and
authority to cause the Trust to engage in the following activities:
(a) to issue and sell the Trust Preferred Securities and the Trust
Common Securities in accordance with this Declaration; provided, however,
-------- -------
that the Trust may issue no more than one series of Trust Preferred Securities
and no more than one series of Trust Common Securities, and, provided further,
-------- -------
that there shall be no interests in the Trust other than the Trust Securities,
and the issuance of the Trust Securities shall be limited to a one-time,
simultaneous issuance of both the Trust Preferred Securities and the Trust
Common Securities on the Closing Date;
(b) in the event that any action referred to below is required, by the
rules and regulations of the Commission or state securities or blue sky laws,
to be taken by the Trustees, on behalf of the Trust, in connection with the
issue and sale of the Trust Preferred Securities, to:
(i) execute and file with the Commission the registration
statement on Form S-3 prepared by the Sponsor, including any amendments
thereto, pertaining to the Trust Preferred Securities, the Trust
Preferred Securities Guarantee and the Debentures; and
(ii) execute and file any documents prepared by the Sponsor, or
take any acts as determined by the Sponsor to be necessary in order to
qualify or register all or part of the Trust Preferred Securities in any
State in which the Sponsor has determined to qualify or register such
Trust Preferred Securities for sale;
(c) to acquire the Debentures with the proceeds of the sale of the
Trust Preferred Securities and the Trust Common Securities; provided, however,
-------- -------
that the Administrative Trustees shall 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 Trust Preferred Securities and the Holders of the Trust Common
Securities;
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<PAGE>
(d) to give the Sponsor and the Property Trustee prompt written notice
of the occurrence of a Tax Event or an Investment Company Event;
(e) to establish a record date with respect to all actions to be taken
hereunder that require a record date be established, including and with
respect to, for the purposes of section316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of Trust Preferred Securities and Holders of Trust
Common Securities as to such actions and applicable record dates;
(f) to take all actions and perform such duties as may be required of
the Administrative Trustees pursuant to the terms of the Trust Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort to
legal action, or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.8(e), the Property Trustee has
the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants and pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's obligations under
the Trust Indenture Act;
(j) to give the certificate required by section 314(a)(4) of the Trust
Indenture Act to the Property Trustee, which certificate may be executed by
any Administrative Trustee;
(k) to incur expenses that are necessary or incidental to carry out
any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar and
transfer agent for the Trust Securities;
(m) to give prompt written notice to the Holders of the Trust
Securities of any notice received from the Debenture Issuer of its election to
defer payments of interest on the Debentures by extending the interest payment
period under the Indenture;
(n) to take all action necessary to cause all applicable tax returns
and tax information reports that are required to be filed with respect to the
Trust to be duly prepared and filed on behalf of the Trust;
(o) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Trust
Preferred Securities or to enable the Trust to effect the purposes for which
the Trust was created;
(p) to take any action, not inconsistent with this Declaration or with
applicable law, that the Administrative Trustees determine in their discretion
to be necessary or desirable in carrying out the activities of the Trust as
set out in this Section 3.6, including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment
Company required to be registered under the Investment Company Act;
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<PAGE>
(ii) causing the Trust to be classified for United States
federal income tax purposes as a grantor trust; and
(iii) cooperating with the Debenture Issuer to ensure that the
Debentures will be treated as indebtedness of the Debenture Issuer for
United States federal income tax purposes,
provided that such action does not materially adversely affect the interests
- -------- ----
of Holders; and
(q) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
The Administrative Trustees must exercise the powers set forth in this
Section 3.6 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Administrative Trustees shall not
take any action that is inconsistent with the purposes and functions of the
Trust set forth in Section 3.3.
Subject to this Section 3.6, the Administrative Trustees shall have none
of the powers or the authority of the Property Trustee set forth in Section
3.8.
Any expenses incurred by the Administrative Trustees pursuant to this
Section 3.6 shall be reimbursed by the Debenture Issuer.
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.
----------------------------------------------------
(a) The Trust shall not, and the Trustees (including the Property
Trustee) shall cause the Trust not to, engage in any activity other than as
required or authorized by this Declaration. In particular, the Trust shall not
and the Trustees (including the Property Trustee) shall cause the Trust not
to:
(i) invest any proceeds received by the Trust from holding the
Debentures, but shall distribute all such proceeds to Holders of Trust
Securities pursuant to the terms of this Declaration and of the Trust
Securities;
(ii) acquire any assets other than as expressly provided
herein;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness other than loans
represented by the Debentures;
(v) possess any power or otherwise act in such a way as to
vary the Trust assets or the terms of the Trust Securities in any way
whatsoever;
(vi) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the Trust
Securities; or
(vii) other than as provided in this Declaration or Annex I, (A)
direct the time, method and place of exercising any trust or power
conferred upon the Debenture Trustee with respect to the Debentures, (B)
waive any past default that is waivable under the Indenture, (C)
exercise any right to
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<PAGE>
rescind or annul any declaration that the principal of all the
Debentures shall be due and payable, or (D) consent to any amendment,
modification or termination of the Indenture or the Debentures where
such consent shall be required unless the Trust shall have received an
opinion of counsel to the effect that such modification will not cause
more than an insubstantial risk that for United States federal income
tax purposes the Trust will not be classified as a grantor trust.
SECTION 3.8 Powers and Duties of the Property Trustee.
-----------------------------------------
(a) The legal title to the Debentures shall be owned by and held of
record in the name of the Property Trustee in trust for the benefit of the
Holders of the Trust Securities. The right, title and interest of the Property
Trustee to the Debentures shall vest automatically in each Person who may
hereafter be appointed as Property Trustee in accordance with Section 5.6.
Such vesting and cessation of title shall be effective whether or not
conveyancing documents with regard to the Debentures have been executed and
delivered.
(b) The Property Trustee shall not transfer its right, title and
interest in the Debentures to the Administrative Trustees or to the Delaware
Trustee (if the Property Trustee does not also act as Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing
trust account (the "Property Trustee Account") in the name of and under
the exclusive control of the Property Trustee on behalf of the Holders
of the Trust Securities and, upon the receipt of payments of funds made
in respect of the Debentures held by the Property Trustee, deposit such
funds into the Property Trustee Account and make payments to the Holders
of the Trust Preferred Securities and Holders of the Trust Common
Securities from the Property Trustee Account in accordance with Section
6.1. Funds in the Property Trustee Account shall be held uninvested
until disbursed in accordance with this Declaration. The Property
Trustee Account shall be an account that is maintained with a banking
institution the rating on whose long-term unsecured indebtedness is at
least equal to the rating (without regard to gradations within a rating
category) assigned to the Trust Preferred Securities by a "nationally
recognized statistical rating organization", as that term is defined for
purposes of Rule 436(g)(2) under the Securities Act;
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption of the Trust Preferred
Securities and the Trust Common Securities to the extent the Debentures
are redeemed or mature; and
(iii) upon written notice of distribution issued by the
Administrative Trustees in accordance with the terms of the Trust
Securities, engage in such ministerial activities as shall be necessary
or appropriate to effect the distribution of the Debentures to Holders
of Trust Securities upon the dissolution and liquidation of the Trust.
(d) The Property Trustee shall take all actions and perform such
duties as may be specifically required of the Property Trustee pursuant to the
terms of the Trust Securities.
(e) The Property Trustee shall take any Legal Action which arises out
of or in connection with (i) an Event of Default of which a Responsible
Officer of the Property Trustee has actual knowledge or (ii) the Property
Trustee's duties and obligations under this Declaration or the Trust Indenture
Act.
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<PAGE>
(f) The Property Trustee shall not resign as a Trustee unless either:
(i) the Trust has been completely liquidated and the proceeds
of the liquidation distributed to the Holders of Trust Securities
pursuant to the terms of the Trust Securities; or
(ii) a Successor Property Trustee has been appointed and has
accepted that appointment in accordance with Section 5.6.
(g) The Property Trustee shall have the legal power to exercise all of
the rights, powers and privileges of a holder of Debentures under the
Indenture and, if an Event of Default actually known to a Responsible Officer
of the Property Trustee occurs and is continuing, the Property Trustee shall,
for the benefit of Holders of the Trust Securities, enforce its rights as
holder of the Debentures and the Trust Preferred Securities Guarantee subject
to the rights of the Holders pursuant to the terms of such Trust Securities
and the Trust Preferred Securities Guarantee.
(h) The Property Trustee may authorize one or more Persons (each, a
"Paying Agent") to pay Distributions, redemption payments or liquidation
payments, on behalf of the Trust, with respect to all Trust Securities, and
any such Paying Agent shall comply with section 317(b) of the Trust Indenture
Act.
Any Paying Agent may be removed by the Property Trustee at any time and a
successor Paying Agent or additional Paying Agents may be appointed at any
time by the Property Trustee.
(i) Subject to this Section 3.8, the Property Trustee shall have none
of the duties, liabilities, powers or the authority of the Administrative
Trustees set forth in Section 3.6.
The Property Trustee must exercise the powers set forth in this Section
3.8 in a manner that is consistent with the purposes and functions of the
Trust set out in Section 3.3, and the Property Trustee shall not take any
action that is inconsistent with the purposes and functions of the Trust set
out in Section 3.3.
SECTION 3.9 Certain Duties and Responsibilities of the Property Trustee.
-----------------------------------------------------------
(a) The Property Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Declaration and in the terms of the Trust Securities, and no implied
covenants shall be read into this Declaration against the Property Trustee. In
case an Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.6), the Property Trustee shall exercise such of the
rights and powers vested in it by this Declaration, and use the same degree of
care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs.
(b) No provision of this Declaration shall be construed to relieve the
Property Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Property
Trustee shall be determined solely by the express provisions of
this Declaration and the terms of the Trust Securities, and the
Property Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this
Declaration and in the terms of the Trust Securities, and no
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implied covenants or obligations shall be read into this
Declaration against the Property Trustee; and
(B) in the absence of bad faith on the part of the
Property Trustee, the Property 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 Property Trustee and conforming to the requirements of this
Declaration; but in the case of any such certificates or opinions
that by any provision hereof are specifically required to be
furnished to the Property Trustee, the Property Trustee shall be
under a duty to examine the same to determine whether or not they
conform to the requirements of this Declaration;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(iii) 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 at the time outstanding
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 Declaration;
(iv) no provision of this Declaration shall require the
Property 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 it 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
Declaration or indemnity reasonably satisfactory to the Property Trustee
against such risk or liability is not reasonably assured to it;
(v) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and
the Property Trustee Account shall be to deal with such property in a
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 Declaration and the Trust
Indenture Act;
(vi) the Property Trustee shall have no duty or liability for
or with respect to the value, genuineness, existence or sufficiency of
the Debentures or the payment of any taxes or assessments levied thereon
or in connection therewith;
(vii) the Property Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree with the
Sponsor. Money held by the Property Trustee need not be segregated from
other funds held by it except in relation to the Property Trustee
Account maintained by the Property Trustee pursuant to Section 3.8(c)(i)
and except to the extent otherwise required by law; and
(viii) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the Sponsor
with their respective duties under this Declaration, nor shall the
Property Trustee be liable for any default or misconduct of the
Administrative Trustees or the Sponsor.
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SECTION 3.10 Certain Rights of the Property Trustee.
--------------------------------------
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively 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 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 Sponsor or the Administrative
Trustees contemplated by this Declaration shall be sufficiently
evidenced by a Direction or an Officers' Certificate;
(iii) whenever in the administration of this Declaration, the
Property Trustee shall deem it desirable that a matter be proved or
established before taking, 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
conclusively rely upon an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Sponsor or the
Administrative Trustees;
(iv) 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;
(v) the Property Trustee may consult with counsel or other
experts and the written advice or opinion of such counsel and experts
with respect to legal matters or advice within the scope of such
experts' area of expertise 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 accordance with such advice or opinion;
such counsel may be counsel to the Sponsor 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 Declaration from any court of competent jurisdiction;
(vi) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration at
the request or direction of any Holder, unless such Holder shall have
provided to the Property Trustee security and indemnity which would
satisfy a reasonable person in the position of the Property Trustee,
against the costs, expenses (including attorneys' fees and expenses and
the expenses of the Property Trustee's agents, nominees or custodians)
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 Property Trustee; provided, that, nothing contained in
-------- ----
this Section 3.10(a)(vi) shall be taken to relieve the Property Trustee,
upon the occurrence of an Event of Default, of its obligation to
exercise the rights and powers vested in it by this Declaration;
(vii) 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,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Property Trustee, in
its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit;
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<PAGE>
(viii) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents, custodians, nominees or attorneys, and the Property
Trustee shall not be responsible for any misconduct or negligence on the
part of any agent, or attorney appointed with due care by it hereunder;
(ix) any action taken by the Property Trustee or its agents
hereunder shall bind the Trust and the Holders of the Trust Securities,
and the signature of the Property Trustee or its agents alone shall be
sufficient and effective to perform any such action, and no third party
shall be required to inquire as to the authority of the Property Trustee
to so act or as to its compliance with any of the terms and provisions
of this Declaration, both of which shall be conclusively evidenced by
the Property Trustee's or its agent's taking such action;
(x) whenever in the administration of this Declaration 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 conclusively relying on or acting in or accordance with
such instructions; and
(xi) except as otherwise expressly provided by this
Declaration, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Declaration.
(b) No provision of this Declaration 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.
SECTION 3.11 Delaware Trustee.
----------------
Notwithstanding any other provision of this Declaration other than
Section 5.2, 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 Administrative Trustees or the Property Trustee
described in this Declaration. Except as set forth in Section 5.2, the
Delaware Trustee shall be a Trustee for the sole and limited purpose of
fulfilling the requirements of section 3807 of the Business Trust Act. The
duties of the Delaware Trustee shall be limited solely to the execution and
delivery of all documents and certificates and the maintenance of all records
necessary to form and maintain the existence of the Trust under the Business
Trust Act. Except for the purpose of the foregoing sentence, the Delaware
Trustee shall have no management responsibilities or any fiduciary duties to
the Trust or any Holder.
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SECTION 3.12 Execution of Documents.
----------------------
Except as otherwise required by the Business Trust Act or as otherwise
set forth in this Declaration, a majority of or, if there are only two, any
Administrative Trustee or, if there is only one, such Administrative Trustee
is authorized to execute, on behalf of the Trust, any documents that the
Administrative Trustees have the power and authority to execute pursuant to
Section 3.6; provided that, the registration statement referred to in Section
-------- ----
3.6(b)(i), including any amendments thereto, if required, by the rules and
regulations of the Commission, to be signed by the Trustees on behalf of the
Trust, shall be signed by all of the Administrative Trustees or by the
Sponsor.
SECTION 3.13 Not Responsible for Recitals or Issuance of Trust Securities.
------------------------------------------------------------
The recitals contained in this Declaration and the Trust Securities
shall be taken as the statements of the Sponsor, and the Trustees do not
assume any responsibility for their correctness. The Trustees make no
representations as to the value or condition of the property of the Trust or
any part thereof. The Trustees make no representations as to the validity or
sufficiency of this Declaration or the Trust Securities.
SECTION 3.14 Duration of Trust.
-----------------
The Trust, unless dissolved pursuant to the provisions of Article VIII
hereof, shall exist for fifty-five years from the Closing Date.
SECTION 3.15 Mergers.
-------
(a) The Trust may not consolidate, amalgamate, merge with or into, or
be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, except as described in Section
3.15(b) and (c) and Annex I.
(b) The Trust may, with the consent of the Administrative Trustees or,
if there are more than two, a majority of the Administrative Trustees, and
without the consent of the Holders of the Trust Securities, the Delaware
Trustee or the Property Trustee, consolidate, amalgamate, merge with or into,
or be replaced by a trust organized as such under the laws of any State of the
United States; provided that:
-------- ----
(i) such successor entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of the
Trust under the Trust Securities; or
(B) substitutes for the Trust Securities other
securities having substantially the same terms as the Trust
Preferred Securities and Trust Common Securities (the "Successor
Securities") so long as the Successor Securities rank the same as
the Trust Preferred Securities and Trust Common Securities rank
with respect to Distributions and payments upon liquidation,
redemption and otherwise;
(ii) the Debenture Issuer expressly acknowledges a trustee of
the Successor Entity that possesses the same powers and duties as the
Property Trustee as the Holder of the Debentures;
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(iii) the Trust Preferred Securities or any Successor Securities
thereof are listed, or any Successor Securities thereof will be listed
upon notification of issuance, on any national securities exchange or
with any other organization on which the Trust Preferred Securities are
then listed or quoted;
(iv) such merger, consolidation, amalgamation or replacement
does not cause the Trust Preferred Securities (including any Successor
Securities thereof) to be downgraded by any nationally recognized
statistical rating organization;
(v) such merger, consolidation, amalgamation or replacement
does not adversely affect the rights, preferences and privileges of the
Holders of the Trust Securities (including any Successor Securities) in
any material respect (other than with respect to any dilution of such
Holders' interests in the Successor Entity as a result of such merger,
consolidation, amalgamation or replacement);
(vi) such Successor Entity has a purpose substantially
identical to that of the Trust;
(vii) prior to such merger, consolidation, amalgamation or
replacement, the Sponsor has received an opinion of a nationally
recognized independent counsel to the Trust experienced in such matters
to the effect that:
(A) such merger, consolidation, amalgamation or
replacement does not adversely affect the rights, preferences and
privileges of the Holders of the Trust Securities (including any
Successor Securities) in any material respect (other than with
respect to any dilution of the Holders' interest in the Successor
Entity);
(B) following such merger, consolidation,
amalgamation or replacement, neither the Trust nor the Successor
Entity will be required to register as an Investment Company; and
(C) following such merger, consolidation,
amalgamation or replacement, the Trust (or the Successor Entity)
will continue to be classified as a grantor trust for United
States federal income tax purposes; and
(viii) the Sponsor guaranties the obligations of such Successor
Entity under the Successor Securities of the Trust Preferred Securities
at least to the extent provided by the Trust Preferred Securities
Guarantee.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except with
the consent of Holders of 100% in liquidation amount of the Trust Securities,
consolidate, amalgamate, merge with or into, or be replaced by any other
entity or permit any other entity to consolidate, amalgamate, merge with or
into, or replace it if such consolidation, amalgamation, merger or replacement
would cause the Trust or Successor Entity to be classified as other than a
grantor trust for United States federal income tax purposes.
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ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Trust Common Securities.
---------------------------------------------
On the Closing Date the Sponsor will purchase all of the Trust Common
Securities issued by the Trust, in an amount equal to at least 3% of the
capital of the Trust, at the same time as the Trust Preferred Securities are
sold.
SECTION 4.2 Responsibilities of the Sponsor.
-------------------------------
In connection with the issue and sale of the Trust Preferred Securities
and subject to the provisions of Section 3.6(b), the Sponsor shall have the
exclusive right and responsibility to engage in the following activities:
(a) to prepare, execute and file with the Commission, on
behalf of the Trust, a registration statement on Form S-3 in relation to
the Trust Preferred Securities, including any amendments thereto;
(b) to determine the States in which to take appropriate
action to qualify or register for sale all or part of the Trust
Preferred Securities and to do any and all such acts, and to prepare,
execute and file any documents, on behalf of the Trust, as the Sponsor
deems necessary or advisable in order to comply with the applicable laws
of any such States;
(c) to negotiate, execute and deliver, on behalf of the Trust,
the Underwriting Agreement providing for the sale of the Trust Preferred
Securities;
(d) to prepare, execute and file, on behalf of the Trust, an
application to the New York Stock Exchange or any other national stock
exchange for listing upon notice of issuance of the Trust Preferred
Securities; and
(e) to prepare, execute and file, on behalf of the Trust, a
registration statement on Form 8-A relating to the issuance of the Trust
Preferred Securities under Section 12(b) of the Exchange Act, including
any amendments thereto.
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees.
------------------
The number of Trustees initially shall be four (4), and:
(a) at any time before the issuance of any Trust Securities,
the Sponsor may, by written instrument, increase or decrease the number
of Trustees;
(b) after the issuance of any Trust Securities, the number of
Trustees may be increased or decreased by vote of the Holders of a
majority in liquidation amount of the Trust Common Securities voting as
a class at a meeting of the Holders of the Trust Common Securities or by
written
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consent in lieu of a meeting; provided however, that if the Property
-------- -------
Trustee does not also act as Delaware Trustee, the number of Trustees
shall be at least three (3); provided further that (1) one Trustee shall
-------- -------
be the Delaware Trustee, as described in Section 5.2 hereof; (2) there
shall be at least one Trustee who is an employee or officer of, or is
affiliated with the Sponsor (an "Administrative Trustee"); and (3) one
Trustee shall be the Property Trustee for so long as this Declaration is
required to qualify as an indenture under the Trust Indenture Act, and
such Trustee may also serve as Delaware Trustee if it meets the
applicable requirements.
SECTION 5.2 Delaware Trustee.
----------------
If required by the Business Trust Act, one Trustee (the "Delaware
Trustee") shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity which has its principal place
of business in the State of Delaware, and otherwise meets the requirements of
applicable law, provided that, if the Property Trustee has its principal place
-------- ----
of business in the State of Delaware and otherwise meets the requirements of
applicable law, then the Property Trustee shall also be the Delaware Trustee,
and Section 3.11 shall have no application.
SECTION 5.3 Property Trustee; Eligibility.
-----------------------------
(a) There shall at all times be one Trustee which shall act as
Property Trustee which shall:
(i) not be an Affiliate of the Sponsor;
(ii) be a corporation organized and doing business under the
laws of the United States of America or any state or territory thereof
or of the District of Columbia, or a corporation or other Person
permitted by the Commission to act as a property trustee under the Trust
Indenture Act, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least 50 million
U.S. dollars ($50,000,000), and subject to supervision or examination by
federal, state, territorial or District of Columbia authority. If such
corporation or other Person publishes reports of condition at least
annually, pursuant to law or to the requirements of the supervising or
examining authority referred to above, then for the purposes of this
Section 5.3(a)(ii), the combined capital and surplus of such corporation
or other Person shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published; and
(iii) if the Trust is excluded from the definition of an
Investment Company solely by means of Rule 3a-7 and to the extent Rule
3a-7 requires a trustee having certain qualifications to hold title to
the "eligible assets" (as defined in Rule 3a-7) of the Trust, the
Property Trustee shall possess those qualifications.
(b) If at any time the Property Trustee shall cease to be eligible to
so act under Section 5.3(a), the Property Trustee shall immediately resign in
the manner and with the effect set forth in Section 5.6(c).
(c) If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of section 310(b) of the Trust Indenture Act, the
Property Trustee and the Holder of the Trust Common Securities (as if it were
the obligor referred to in section 310(b) of the Trust Indenture Act) shall in
all respects comply with the provisions of section 310(b) of the Trust
Indenture Act.
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(d) The Trust Preferred Securities Guarantee shall be deemed to be
specifically described in this Declaration for purposes of clause (i) of the
first provision contained in Section 310(b) of the Trust Indenture Act.
SECTION 5.4 Qualifications of Administrative Trustees and Delaware Trustee
--------------------------------------------------------------
Generally.
---------
Each Administrative Trustee and the Delaware Trustee (unless the
Property Trustee also acts as Delaware 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 Authorized Officers.
SECTION 5.5 Initial Trustees.
----------------
The initial Administrative Trustees shall be:
Daniel P. Bittner
Ralph G. Baeten
c/o WPS Resources Corporation
700 North Adams Street
P.O. Box 19001
Green Bay, Wisconsin 54307-9001
The initial Property Trustee shall be:
State Street Bank and Trust Company
Two International Place, 4th Floor
P.O. Box 778
Boston, Massachusetts 02102-0778
The initial Delaware Trustee shall be:
First Union Trust Company, National Association
One Rodney Square
920 King Street, 1st Floor
Wilmington, Delaware 19801
SECTION 5.6 Appointment, Removal and Resignation of Trustees.
------------------------------------------------
(a) Subject to Section 5.6(b), Trustees may be appointed or removed
without cause at any time:
(i) until the issuance of any Trust Securities, by written
instrument executed by the Sponsor; and
(ii) after the issuance of any Trust Securities, by vote of the
Holders of a Majority in liquidation amount of the Trust Common
Securities, voting as a class at a meeting of the Holders of the Trust
Common Securities, provided, however, that if an Event of Default shall
occur and so long as such Event of Default shall continue (A) the
Property Trustee and the Delaware Trustee may be removed and replaced by
the vote of the Holders of a Majority in liquidation amount of the
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outstanding Trust Preferred Securities, voting as a class at a meeting
of the Holders of the Trust Preferred Securities, and (B) the Property
Trustee and the Delaware Trustee may not be removed and replaced by the
Sponsor or the Holders of the Trust Common Securities.
(b) (i) The Trustee that acts as Property Trustee shall not be
removed in accordance with Section 5.6(a) until a Successor Property
Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Property Trustee and delivered to
the Administrative Trustees and the Sponsor;
(ii) the Trustee that acts as Delaware Trustee shall not be
removed in accordance with this Section 5.6(a) until a successor Trustee
possessing the qualifications to act as Delaware Trustee under Sections
5.2 and 5.4 (a "Successor Delaware Trustee") has been appointed and has
accepted such appointment by written instrument executed by such
Successor Delaware Trustee and delivered to the Administrative Trustees
and the Sponsor.
(c) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until his death, removal or
resignation. Any Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing signed by the Trustee and
delivered to the Sponsor and the Trust, which resignation shall take effect
upon such delivery or upon such later date as is specified therein; provided,
--------
however, that:
- -------
(i) No such resignation of the Trustee that acts as the
Property Trustee shall be effective:
(A) until a Successor Property Trustee has been
appointed and has accepted such appointment by instrument executed
by such Successor Property Trustee and delivered to the Trust, the
Sponsor, and the resigning Property Trustee; or
(B) until the assets of the Trust have been
completely liquidated and the proceeds thereof distributed to the
holders of the Trust Securities; and
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor Delaware Trustee
has been appointed and has accepted such appointment by instrument
executed by such Successor Delaware Trustee and delivered to the Trust,
the Sponsor and the resigning Delaware Trustee.
(d) The Holders of the Trust Common Securities shall use their best
efforts to promptly appoint a Successor Delaware Trustee or Successor Property
Trustee as the case may be if the Property Trustee or the Delaware Trustee
delivers an instrument of resignation in accordance with this Section 5.6.
(e) If no Successor Property Trustee or Successor Delaware Trustee
shall have been appointed and accepted appointment as provided in this Section
5.6 within sixty (60) days after delivery to the Sponsor and the Trust of an
instrument of resignation, the resigning Property Trustee or Delaware Trustee,
as applicable, may petition any court of competent jurisdiction for
appointment of a Successor Property Trustee or Successor Delaware Trustee.
Such court may thereupon, after prescribing such notice, if any, as it may
deem proper, appoint a Successor Property Trustee or Successor Delaware
Trustee, as the case may be.
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(f) No Property Trustee or Delaware Trustee shall be liable for the
acts or omissions to act of any Successor Property Trustee or Successor
Delaware Trustee, as the case may be.
SECTION 5.7 Vacancies among Trustees.
------------------------
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 5.1, or if the number of Trustees
is increased pursuant to Section 5.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the Administrative Trustees or, if
there are more than two, a majority of the Administrative Trustees, shall be
conclusive evidence of the existence of such vacancy. The vacancy shall be
filled with a Trustee appointed in accordance with Section 5.6.
SECTION 5.8 Effect of Vacancies.
-------------------
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee
shall not operate to annul, dissolve or terminate the Trust or terminate this
Declaration. Whenever a vacancy in the number of Administrative Trustees
shall occur, until such vacancy is filled by the appointment of a
Administrative Trustee in accordance with Section 5.6, the Administrative
Trustees in office, regardless of their number, shall have all the powers
granted to the Administrative Trustees and shall discharge all the duties
imposed upon the Administrative Trustees by this Declaration.
SECTION 5.9 Meetings.
--------
If there is more than one Administrative Trustee, meetings of the
Administrative Trustees shall be held from time to time upon the call of any
Administrative Trustee. Regular meetings of the Administrative Trustees may
be held at a time and place fixed by resolution of the Administrative
Trustees. Notice of any in-person meetings of the Administrative Trustees
shall be hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than 48 hours
before such meeting. Notice of any telephonic meetings of the Administrative
Trustees or any committee thereof shall be hand delivered or otherwise
delivered in writing (including by facsimile, with a hard copy by overnight
courier) not less than 24 hours before a meeting. Notices shall contain a
brief statement of the time, place and anticipated purposes of the meeting.
The presence (whether in person or by telephone) of an Administrative Trustee
at a meeting shall constitute a waiver of notice of such meeting except where
an Administrative Trustee attends a meeting for the express purpose of
objecting to the transaction of any activity on the ground that the meeting
has not been lawfully called or convened. Unless provided otherwise in this
Declaration, any action of the Administrative Trustees may be taken at a
meeting by vote of a majority of the Administrative Trustees present (whether
in person or by telephone) and eligible to vote with respect to such matter,
provided that a Quorum is present, or without a meeting, by the unanimous
written consent of the Administrative Trustees. In the event there is only
one Administrative Trustee, any and all action of such Administrative Trustee
shall be evidenced by a written consent of such Administrative Trustee.
SECTION 5.10 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 3.6, including any registration statement or amendment thereto filed
with the Commission, or making any other governmental filing; and
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(b) the Administrative Trustees shall have power to delegate from time
to time to such of their number or to officers of the Trust 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 the Trust, as set forth
herein.
SECTION 5.11 Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any Person into which the Property Trustee or the Delaware Trustee, as
the case may be, may be merged or converted or with which either may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Property Trustee or the Delaware Trustee, as the
case may be, shall be a party, or any Person succeeding to all or
substantially all the corporate trust business of the Property Trustee or the
Delaware Trustee, as the case may be, shall be the successor of the Property
Trustee or the Delaware Trustee, as the case may be, hereunder, provided such
Person 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.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions.
-------------
Holders shall receive Distributions in accordance with the applicable
terms of the relevant Holder's Trust Securities. Distributions shall be made
on the Trust Preferred Securities and the Trust Common Securities in
accordance with the preferences set forth in their respective terms. If and
to the extent that the Debenture Issuer makes a payment of interest (including
Compounded Interest (as defined in the Indenture) and Additional Interest (as
defined in the Indenture)), premium and/or principal on the Debentures held by
the Property Trustee (the amount of any such payment being a "Payment
Amount"), the Property Trustee shall and is directed, to the extent funds are
available for that purpose, to make a distribution (a "Distribution") of the
Payment Amount to Holders. Each Holder, by its acceptance of a Trust
Security, agrees that the Trustees are not personally liable to the Holder for
any failure by the Debenture Issuer to make Distributions or other payments on
the Debentures held by the Property Trustee. This Section 6.1 does not limit
the liability of the Trustees expressly set forth elsewhere in this
Declaration or under the Trust Indenture Act.
SECTION 6.2 Payments under Indenture or Pursuant to Direct Actions.
------------------------------------------------------
Any amount payable hereunder to any Holder of Trust Preferred Securities
shall be reduced by the amount of any corresponding payment such Holder (or a
Trust Preferred Security Beneficial Owner with respect to the Holder's Trust
Preferred Securities) has directly received pursuant to Section 6.4 of the
Indenture or Section 5(b) of Annex I.
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ARTICLE VII
ISSUANCE OF TRUST PREFERRED SECURITIES
SECTION 7.1 General Provisions Regarding Trust Securities.
---------------------------------------------
(a) The Administrative Trustees shall, on behalf of the Trust, issue
one class of preferred securities representing undivided beneficial interests
in the assets of the Trust having such terms as are set forth in Annex I (the
"Trust Preferred Securities") and one class of common securities representing
undivided beneficial interests in the assets of the Trust having such terms as
are set forth in Annex I (the "Trust Common Securities"). The Trust shall
issue no securities or other interests in the assets of the Trust other than
the Trust Preferred Securities and the Trust Common Securities.
(b) The Certificates shall be signed, on behalf of the Trust, by an
Administrative Trustee. Any such signature may be the manual or facsimile
signature of any present or any future Administrative Trustee. In case any
Administrative Trustee of the Trust who shall have signed any of the
Certificates shall cease to be such a Administrative Trustee before the
Certificates so signed shall be delivered by the Trust, such Certificates
nevertheless may be delivered as though the person who signed such
Certificates had not ceased to be such Administrative Trustee; and any
Certificate may be signed, on behalf of the Trust, by such persons who, at the
actual date of execution of such Certificate shall be the Administrative
Trustees of the Trust, although at the date of the execution and delivery of
the Declaration any such person was not such an Administrative Trustee.
(c) The consideration received by the Trust for the issuance of the
Trust Securities shall constitute a contribution to the capital of the Trust
and shall not constitute a loan to the Trust.
(d) Upon issuance of the Trust Securities as provided in this
Declaration, the Trust Securities so issued shall be deemed to be validly
issued, fully paid and non-assessable, subject to Section 10.1(b) with respect
to the Trust Common Securities. The issuance of the Trust Securities as
provided in this Declaration is not subject to preemptive or other similar
rights.
(e) Every Person, by virtue of having become a Holder or a Trust
Preferred Security Beneficial Owner in accordance with the terms of this
Declaration, shall be deemed to have expressly assented and agreed to the
terms of, and shall be bound by, this Declaration, the Trust Securities
Guaranties and the Indenture.
SECTION 7.2 Paying Agent.
------------
In the event that the Trust Preferred Securities are not in book-entry
only form, the Trust shall maintain in the Borough of Manhattan, City of New
York, State of New York, an office or agency where the Trust Preferred Trust
Securities may be presented for payment ("Paying Agent"). The term "Paying
Agent" includes any additional paying agent. The Trust may change any Paying
Agent without prior notice to any Holder. The Trust shall notify the Property
Trustee of the name and address of any Agent not a party to this Declaration.
If the Trust fails to appoint or maintain another entity as Paying Agent, the
Property Trustee shall act as such. The Trust or any of its Affiliates may
act as Paying Agent. The Trust shall act as Paying Agent for the Trust Common
Securities.
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ARTICLE VIII
DISSOLUTION OF TRUST
SECTION 8.1 Dissolution of Trust.
--------------------
(a) The Trust shall dissolve upon the earliest of:
(i) the bankruptcy of the Sponsor;
(ii) the filing of articles of dissolution or their equivalent
with respect to the Sponsor; the receipt by the Trustees of the consent
of at least a majority in liquidation amount of the Trust Securities,
voting together as a single class, to the dissolution of the Trust; the
revocation of the Sponsor's charter and the expiration of ninety (90)
days after the date of revocation without a reinstatement thereof;
(iii) the entry of a decree of judicial dissolution of the
Holder of the Trust Common Securities, the Sponsor or the Trust;
(iv) the time when all of the Trust Securities shall have been
called for redemption and the amounts necessary for redemption thereof
shall have been paid to the Holders in accordance with the terms of the
Trust Securities;
(v) at the election of the Sponsor, after satisfaction of the
liabilities of creditors of the Trust as required by applicable law,
provided that all of the Debentures are distributed to the Holders of
the Trust Preferred Securities in liquidation of the Trust;
(vi) the time when all of the Administrative Trustees and the
Sponsor shall have consented to dissolution of the Trust, provided such
action is taken before the issuance of any Securities; or
(vii) the expiration of the term of the Trust, as set forth in
Section 3.14.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a) and the completion of the winding up of the
affairs of the Trust, the Trustees shall file a certificate of cancellation
with the Secretary of State of the State of Delaware.
(c) The provisions of Section 3.9 and Article X shall survive the
termination of the Trust.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Trust Securities.
----------------------------
(a) Trust Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Declaration and in
the terms of the Trust Securities. Any transfer or purported transfer of any
Trust Security not made in accordance with this Declaration shall be null and
void.
(b) Subject to this Article IX, Trust Preferred Securities shall be
freely transferable.
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(c) Subject to this Article IX, the Sponsor and any Related Party may
only transfer Trust Common Securities to the Sponsor or a Related Party of the
Sponsor; provided that, any such transfer is subject to the condition
precedent that the transferor obtain the written opinion of nationally
recognized independent counsel experienced in such matters that such transfer
would not cause more than an insubstantial risk that:
(i) the Trust would not be classified for United States
federal income tax purposes as a grantor trust; and
(ii) the Trust would be an Investment Company or the transferee
would become an Investment Company.
SECTION 9.2 Transfer of Certificates.
------------------------
The Administrative Trustees shall provide for the registration of
Certificates and of transfers of Certificates, which will be effected without
charge but only upon payment (with such indemnity as the Administrative
Trustees may require) in respect of any tax or other governmental charges that
may be imposed in relation to it. Upon surrender for registration of transfer
of any Certificate, the Administrative Trustees shall cause one or more new
Certificates to be issued in the name of the designated transferee or
transferees. Every Certificate surrendered for registration of transfer shall
be accompanied by a written instrument of transfer in form satisfactory to the
Administrative Trustees duly executed by the Holder or such Holder's attorney
duly authorized in writing. Each Certificate surrendered for registration of
transfer shall be canceled by the Administrative Trustees. A transferee of a
Certificate shall be entitled to the rights and subject to the obligations of
a Holder hereunder upon the receipt by such transferee of a Certificate. By
acceptance of a Certificate, each transferee shall be deemed to have agreed to
be bound by this Declaration.
SECTION 9.3 Deemed Trust Security Holders.
-----------------------------
The Trustees may treat the Person in whose name any Certificate
shall be registered on the books and records of the Trust as the sole holder
of such Certificate and of the Trust Securities represented by such
Certificate for purposes of receiving Distributions and for all other purposes
whatsoever and, accordingly, shall not be bound to recognize any equitable or
other claim to or interest in such Certificate or in the Trust Securities
represented by such Certificate on the part of any Person, whether or not the
Trust shall have actual or other notice thereof.
SECTION 9.4 Book Entry Interests.
--------------------
Unless otherwise specified in the terms of the Trust Preferred
Securities, the Trust Preferred Securities Certificates, on original issuance,
will be issued in the form of one or more, fully registered, global Trust
Preferred Security Certificates (each, a "Global Certificate"), to be
delivered to The Depository Trust Company, the initial Clearing Agency, by, or
on behalf of, the Trust. Such Global Certificate(s) shall initially be
registered on the books and records of the Trust in the name of Cede & Co.,
the nominee of The Depository Trust Company, and no Trust Preferred Security
Beneficial Owner will receive a definitive Trust Preferred Security
Certificate representing such Trust Preferred Security Beneficial Owner's
interests in such Global Certificate(s), except as provided in Section 9.7.
Unless and until definitive, fully registered Trust Preferred Security
Certificates (the "Definitive Trust Preferred Security Certificates") have
been issued to the Trust Preferred Security Beneficial Owners pursuant to
Section 9.7:
(a) the provisions of this Section 9.4 shall be in full force
and effect;
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(b) the Trust and the Trustees shall be entitled to deal with
the Clearing Agency for all purposes of this Declaration (including the
payment of Distributions on the Global Certificate(s) and receiving
approvals, votes or consents hereunder) as the Holder of the Trust
Preferred Securities and the sole holder of the Global Certificate(s)
and shall have no obligation to the Trust Preferred Security Beneficial
Owners;
(c) to the extent that the provisions of this Section 9.4
conflict with any other provisions of this Declaration, the provisions
of this Section 9.4 shall control; and
(d) the rights of the Trust Preferred Security Beneficial
Owners shall be exercised only through the Clearing Agency and shall be
limited to those established by law and agreements between such Trust
Preferred Security Beneficial Owners and the Clearing Agency and/or the
Clearing Agency Participants. The Depository Trust Company will make
book entry transfers among the Clearing Agency Participants and receive
and transmit payments of Distributions on the Global Certificate(s) to
such Clearing Agency Participants.
SECTION 9.5 Notices to Clearing Agency.
--------------------------
Whenever a notice or other communication to the Trust Preferred Security
Holders is required under this Declaration, unless and until Definitive Trust
Preferred Security Certificates shall have been issued to the Trust Preferred
Security Beneficial Owners pursuant to Section 9.7, the Administrative
Trustees shall give all such notices and communications specified herein to be
given to the Trust Preferred Security Holders to the Clearing Agency, and
shall have no notice obligations to the Trust Preferred Security Beneficial
Owners.
SECTION 9.6 Appointment of Successor Clearing Agency.
----------------------------------------
If any Clearing Agency elects to discontinue its services as securities
depositary with respect to the Trust Preferred Securities, the Administrative
Trustees may, in their sole discretion, appoint a successor Clearing Agency
with respect to such Trust Preferred Securities.
SECTION 9.7 Definitive Trust Preferred Security Certificates.
------------------------------------------------
If:
(a) a Clearing Agency elects to discontinue its services as
securities depositary with respect to the Trust Preferred Securities and a
successor Clearing Agency is not appointed within ninety (90) days after such
discontinuance pursuant to Section 9.6; or
(b) the Administrative Trustees elect, after consultation with
the Sponsor, to terminate the book entry system through the Clearing Agency
with respect to the Trust Preferred Securities, then:
(i) Definitive Trust Preferred Security Certificates shall be
prepared by the Administrative Trustees, on behalf of the Trust, with
respect to such Trust Preferred Securities; and
(ii) upon surrender of the Global Certificate(s) by the
Clearing Agency, accompanied by registration instructions, the
Administrative Trustees shall cause Definitive Trust Preferred Security
Certificates to be delivered to Trust Preferred Security Beneficial
Owners in accordance with the instructions of the Clearing Agency.
Neither the Trustees nor the Trust shall be liable for any delay in
delivery of such instructions and each of them may conclusively rely on,
and shall be protected in
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relying on, said instructions of the Clearing Agency. The Definitive
Trust Preferred Security 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 their
execution thereof, and may have such letters, numbers or other marks
of identification or designation and such legends or endorsements
as the Administrative Trustees may deem appropriate, or as may be
required to comply with any law or with any rule or regulation made
pursuant thereto, or to comply with any rule or regulation of any stock
exchange on which the Trust Preferred Securities may be listed, or to
conform to usage.
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates.
-------------------------------------------------
If:
(a) any mutilated Certificates should be surrendered to the
Administrative Trustees, or if the Administrative Trustees shall receive
evidence to their satisfaction of the destruction, loss or theft of any
Certificate; and
(b) there shall be delivered to the Administrative Trustees
such security or indemnity as may be required by them to keep each of them
harmless;
then, in the absence of notice that such Certificate shall have been acquired
by a bona fide purchaser, any Administrative Trustee, on behalf of the Trust,
shall execute and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like denomination.
In connection with the issuance of any new Certificate under this Section 9.8,
the Administrative Trustees 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 Certificate issued pursuant to this Section shall
constitute conclusive evidence of an ownership interest in the relevant Trust
Securities, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF TRUST SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability.
---------
(a) Except as expressly set forth in this Declaration, the Trust
Securities Guaranties and the terms of the Trust Securities, the Sponsor shall
not be:
(i) personally liable for the return of any portion of the
capital contributions (or any return thereon) of the Holders of the
Trust Securities which shall be made solely from assets of the Trust;
and
(ii) required to pay to the Trust or to any Holder of Trust
Securities any deficit upon termination of the Trust or otherwise.
(b) The Holder of the Trust Common Securities shall be liable for all
of the debts and obligations of the Trust (other than with respect to the
Trust Securities) to the extent not satisfied out of the Trust's assets.
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(c) Pursuant to section 3803(a) of the Business Trust Act, the Holders
of the Trust Preferred Securities 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.
SECTION 10.2 Exculpation.
-----------
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Trust or any Covered Person for any loss,
damage or claim incurred by reason of 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
the authority conferred on such Indemnified Person by this Declaration or by
law, except that an Indemnified Person shall be liable for any such loss,
damage or claim incurred by reason of such Indemnified Person's gross
negligence (or in the case of the Property Trustee, negligence, subject to the
provisions of Section 3.9) or willful misconduct with respect to such acts or
omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable
care by or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets
from which Distributions to Holders of Trust Securities might properly be
paid.
SECTION 10.3 Fiduciary Duty.
--------------
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person
for its good faith reliance on the provisions of this Declaration. The
provisions of this Declaration, to the extent that they restrict the duties
and liabilities of an Indemnified Person otherwise existing at law or in
equity (other than the duties imposed on the Property Trustee under the Trust
Indenture Act), are agreed by the parties hereto to replace such other duties
and liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein or required by
applicable law:
(i) whenever a conflict of interest exists or arises between
an Indemnified Person and Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person shall
act in a manner that is, or provide terms that are, fair and reasonable
to the Trust or any Holder of Trust Securities,
the Indemnified Person shall resolve such conflict of interest, take such
action or provide such terms, considering in each case the relative interest
of each party (including its own interest) to such conflict, agreement,
transaction or situation and the benefits and burdens relating to such
interests, any customary or accepted industry practices, and any applicable
generally accepted accounting practices or principles. In the absence of bad
faith by the Indemnified Person, the resolution, action or term so made, taken
or provided by
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the Indemnified Person shall not constitute a breach of this Declaration or
any other agreement contemplated herein or of any duty or obligation of the
Indemnified Person at law or in equity or otherwise.
(c) Unless required by applicable law, whenever in this Declaration an
Indemnified Person is permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such interests and
factors as it desires, including its own interests, and shall have no
duty or obligation to give any consideration to any interest of or
factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and shall not
be subject to any other or different standard imposed by this
Declaration or by applicable law.
SECTION 10.4 Indemnification.
---------------
(a) To the fullest extent permitted by applicable law, the Sponsor
shall indemnify and hold harmless each WPSR Indemnified Person from and
against any loss, damage, liability, tax, penalty, expense or claim incurred
by such WPSR Indemnified Person by reason of the creation, operation or
termination of the Trust or any act or omission performed or omitted by such
WPSR Indemnified Person in good faith on behalf of the Trust and in a manner
such WPSR Indemnified Person reasonably believed to be within the scope of
authority conferred on such WPSR Indemnified Person by this Declaration,
except that no WPSR Indemnified Person shall be entitled to be indemnified in
respect of any loss, damage or claim incurred by such WPSR Indemnified Person
by reason of gross negligence or willful misconduct with respect to such acts
or omissions.
(b) To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by a WPSR Indemnified Person in defending any
claim, demand, action, suit or proceeding shall, from time to time, be
advanced by the Sponsor prior to the final disposition of such claim, demand,
action, suit or proceeding upon receipt by the Sponsor of an undertaking by or
on behalf of the WPSR Indemnified Person to repay such amount if it shall be
determined that the WPSR Indemnified Person is not entitled to be indemnified
as authorized in Section 10.4(a). The obligation to indemnify as set forth in
Section 10.4(a) and (b) shall survive the satisfaction and discharge of this
Declaration.
(c) The Sponsor agrees to indemnify the (i) Property Trustee, (ii) the
Delaware Trustee, (iii) any Affiliate of the Property Trustee or the Delaware
Trustee, and (iv) any officers, directors, shareholders, members, partners,
employees, representatives, custodians, nominees or agents of the Property
Trustee or the Delaware Trustee (each of the Persons in (i) through (iv) being
referred to as a "Fiduciary Indemnified Person") for, and to hold each
Fiduciary Indemnified Person harmless against, any loss, liability, taxes or
expense incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration or the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees
and expenses) of defending itself against or investigating any claim, action,
suit or liability in connection with the exercise or performance of any of its
powers or duties hereunder. The obligation to indemnify as set forth in this
Section 10.4(c) shall survive the satisfaction and discharge of this
Declaration.
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SECTION 10.5 Outside Businesses.
------------------
Any Covered Person, the Sponsor, the Delaware Trustee and the Property
Trustee, subject to Section 5.3(c), 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
Declaration 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. No
Covered Person, the Sponsor, the Delaware Trustee or the Property 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 any Covered Person, the Sponsor,
the Delaware Trustee and the Property 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 Covered
Person, the Delaware Trustee and the Property Trustee may engage or be
interested in any financial or other transaction with the Sponsor or any
Affiliate of the Sponsor, or may act as depositary for, trustee or agent for,
or act on any committee or body of holders of, securities or other obligations
of the Sponsor or its Affiliates.
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.
-----------
The fiscal year ("Fiscal Year") of the Trust shall be the calendar year,
or such other year as is required by the Code.
SECTION 11.2 Certain Accounting Matters.
--------------------------
(a) At all times during the existence of the Trust, the Administrative
Trustees shall keep, or cause to be kept, full books of account, records and
supporting documents, which shall reflect in reasonable detail, each
transaction of the Trust. The books of account shall be maintained on the
accrual method of accounting, in accordance with generally accepted accounting
principles, consistently applied. The Trust shall use the accrual method of
accounting for United States federal income tax purposes. The books of account
and the records of the Trust shall be examined by and reported upon as of the
end of each Fiscal Year of the Trust by a firm of independent certified public
accountants selected by the Administrative Trustees.
(b) The Administrative Trustees shall cause to be prepared and
delivered to each of the Holders of Trust Securities, within ninety (90) days
after the end of each Fiscal Year of the Trust, annual financial statements of
the Trust, including a balance sheet of the Trust as of the end of such Fiscal
Year, and the related statements of income or loss.
(c) The Administrative Trustees shall cause to be duly prepared and
delivered to each of the Holders of Trust Securities any annual United States
federal income tax information statement, required by the Code, containing
such information with regard to the Trust Securities held by each Holder as is
required by the Code and the Treasury Regulations. Notwithstanding any right
under the Code to deliver any such statement at a later date, the
Administrative Trustees shall endeavor to deliver all such statements within
thirty (30) days after the end of each Fiscal Year of the Trust.
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(d) The Administrative Trustees shall cause to be duly prepared and
filed with the appropriate taxing authority, an annual United States federal
income tax return, on a Form 1041 or such other form required by United States
federal income tax law, and any other annual income tax returns required to be
filed by the Administrative Trustees, on behalf of the Trust, with any state
or local taxing authority.
SECTION 11.3 Banking.
-------
The Trust shall maintain one or more bank accounts in the name and for
the sole benefit of the Trust; provided, however, that all payments of funds
in respect of the Debentures held by the Property Trustee shall be made
directly to the Property Trustee Account and no other funds of the Trust shall
be deposited in the Property Trustee Account. The sole signatories for such
accounts shall be designated by the Administrative Trustees; provided,
however, that the Property Trustee shall designate the signatories for the
Property Trustee Account.
SECTION 11.4 Withholding.
-----------
The Trust and the Administrative Trustees shall comply with all
withholding requirements under United States federal, state and local law.
The Trust shall request, and the Holders shall provide to the Trust, such
forms or certificates as are necessary to establish an exemption from
withholding with respect to each Holder, and any representations and forms as
shall reasonably be requested by the Trust to assist it in determining the
extent of, and in fulfilling, its withholding obligations. The Administrative
Trustees shall file required forms with applicable jurisdictions and, unless
an exemption from withholding is properly established by a Holder, shall remit
amounts withheld with respect to the Holder to applicable jurisdictions. To
the extent that the Trust is required to withhold and pay over any amounts to
any authority with respect to distributions or allocations to any Holder, the
amount withheld shall be deemed to be a distribution in the amount of the
withholding to the Holder. In the event of any claimed over-withholding,
Holders shall be limited to an action against the applicable jurisdiction. If
the amount required to be withheld was not withheld from actual Distributions
made, the Trust may reduce subsequent Distributions by the amount of such
withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.
----------
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Trust Securities, this Declaration may only be amended
by a written instrument approved and executed by:
(i) the Administrative Trustees (or, if there are more than
two Administrative Trustees a majority of the Administrative Trustees);
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Property Trustee, the Property Trustee;
and
(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the Delaware Trustee.
(b) No amendment of this Declaration shall be made, and any such
purported amendment shall be void and ineffective:
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(i) unless, in the case of any proposed amendment, the
Property Trustee shall have first received an Officers' Certificate from
each of the Trust and the Sponsor that such amendment is permitted by,
and conforms to, the terms of this Declaration (including the terms of
the Trust Securities);
(ii) unless, in the case of any proposed amendment which
affects the rights, powers, duties, obligations or immunities of the
Property Trustee or the Delaware Trustee, the Property Trustee or the
Delaware Trustee, as the case may be, shall have first received:
(A) an Officers' Certificate from each of the Trust and
the Sponsor that such amendment is permitted by, and conforms to,
the terms of this Declaration (including the terms of the Trust
Securities); and
(B) an opinion of counsel (who may be counsel to the
Sponsor or the Trust) that such amendment is permitted by, and
conforms to, the terms of this Declaration (including the terms of
the Trust Securities); and
(iii) to the extent the result of such amendment would be to:
(A) cause the Trust to fail to continue to be classified
for purposes of United States federal income taxation as a grantor
trust;
(B) reduce or otherwise materially adversely affect the
powers of the Property Trustee in contravention of the Trust
Indenture Act; or
(C) cause the Trust to be deemed to be an Investment
Company required to be registered under the Investment Company
Act.
(c) At such time after the Trust has issued any Trust Securities that
remain outstanding, any amendment that would materially adversely affect the
rights, privileges or preferences of any Holder of Trust Securities may be
effected only with such additional requirements as may be set forth in the
terms of such Trust Securities.
(d) Section 9.1(c) and this Section 12.1 shall not be amended without
the consent of all of the Holders of the Trust Securities.
(e) Article IV shall not be amended without the consent of the Holders
of a Majority in liquidation amount of the Trust Common Securities.
(f) The rights of the holders of the Trust Common Securities under
Article V to increase or decrease the number of, and appoint and remove
Trustees shall not be amended without the consent of the Holders of a Majority
in liquidation amount of the Trust Common Securities.
(g) Notwithstanding Section 12.1(c), this Declaration may be amended
without the consent of the Holders of the Trust Securities to:
(i) cure any ambiguity;
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(ii) correct or supplement any provision in this Declaration
that may be defective or inconsistent with any other provision of this
Declaration;
(iii) add to the covenants, restrictions or obligations of the
Sponsor;
(iv) conform to any change in (A) Rule 3a-7 or written change
in interpretation or application of Rule 3a-7 by any legislative body,
court, government agency or regulatory authority if the Trust is
excluded from the definition of an Investment Company solely by means of
Rule 3a-7 and, (B) Rule 3a-5 or written change in such interpretation or
application of Rule 3a-5, provided that in each instance such
conformation shall not have a material adverse effect on the right,
preferences or privileges of the Holders of Trust Securities; and
(v) to modify, eliminate and add to any provision of this
Declaration, provided that such modification, elimination, or addition
would not adversely affect the rights, privileges, or preferences of any
Holder of the Trust Securities.
SECTION 12.2 Meetings of the Holders of Trust Securities; Action by
------------------------------------------------------
Written Consent.
---------------
(a) Meetings of the Holders of any class of Trust Securities may be
called at any time by the Administrative Trustees (or as provided in the terms
of the Trust Securities) to consider and act on any matter on which Holders of
such class of Trust Securities are entitled to act under the terms of this
Declaration, the terms of the Trust Securities or the rules of any stock
exchange on which the Trust Preferred Securities may be listed or admitted for
trading. The Administrative Trustees shall call a meeting of the Holders of
such class if directed to do so by the Holders of at least 10% in liquidation
amount of such class of Trust Securities. Such direction shall be given by
delivering to the Administrative Trustees one or more calls in a writing
stating that the signing Holders of Trust Securities wish to call a meeting
and indicating the general or specific purpose for which the meeting is to be
called. Any Holders of Trust Securities calling a meeting shall specify in
writing the Certificates held by the Holders of Trust Securities exercising
the right to call a meeting, and only those Trust Securities specified shall
be counted for purposes of determining whether the required percentage set
forth in the second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the Trust
Securities, the following provisions shall apply to meetings of Holders of
Trust Securities:
(i) notice of any such meeting shall be given to all the
Holders of Trust Securities having a right to vote at such meeting at
least seven (7) days and not more than sixty (60) days before the date
of such meeting. Whenever a vote, consent or approval of the Holders of
Trust Securities is permitted or required under this Declaration or the
rules of any stock exchange on which the Trust Preferred Securities may
be listed or admitted for trading, such vote, consent or approval may be
given at a meeting of the Holders of Trust Securities. Any action that
may be taken at a meeting of the Holders of Trust Securities may be
taken without a meeting if a consent in writing setting forth the action
so taken is signed by the Holders of Trust Securities owning not less
than the minimum amount of Trust Securities in liquidation amount that
would be necessary to authorize or take such action at a meeting at
which all Holders of Trust Securities having a right to vote thereon
were present and voting. Prompt notice of the taking of action without
a meeting shall be given to the Holders of Trust Securities entitled to
vote who have not consented in writing. The Administrative Trustees may
specify that any written ballot submitted to the Trust Security Holders
for the purpose of taking any
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action without a meeting shall be returned to the Trust within the time
specified by the Administrative Trustees;
(ii) each Holder of a Trust Security may authorize any Person
to act for it by proxy on all matters in which a Holder of Trust
Securities is entitled to participate, including waiving notice of any
meeting, or voting or participating at a meeting. No proxy shall be
valid after the expiration of eleven (11) months from the date thereof
unless otherwise provided in the proxy. Every proxy shall be revocable
at the pleasure of the Holder of Trust Securities executing it. Except
as otherwise provided herein, all matters relating to the giving, voting
or validity of proxies shall be governed by the General Corporation Law
of the State of Delaware relating to proxies, and judicial
interpretations thereunder, as if the Trust were a Delaware corporation
and the Holders of the Trust Securities were stockholders of a Delaware
corporation;
(iii) each meeting of the Holders of the Trust Securities shall
be conducted by the Administrative Trustees or by such other Person that
the Administrative Trustees may designate; and
(iv) unless the Business Trust Act, this Declaration, the terms
of the Trust Securities, the Trust Indenture Act or the listing rules of
any stock exchange on which the Trust Preferred Trust Securities are
then listed or trading otherwise provides, the Administrative Trustees,
in their sole discretion, shall establish all other provisions relating
to meetings of Holders of Trust Securities, including notice of the
time, place or purpose of any meeting at which any matter is to be voted
on by any Holders of Trust Securities, waiver of any such notice, action
by consent without a meeting, the establishment of a record date, quorum
requirements, voting in person or by proxy or any other matter with
respect to the exercise of any such right to vote.
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property Trustee.
--------------------------------------------------
The Trustee which acts as initial Property Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Property Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Property Trustee's acceptance of its
appointment as Property Trustee that:
(a) the Property Trustee is a trust company, corporation or
association with trust powers (in the case of the initial Property Trustee, a
trust company), duly organized, validly existing and in good standing under
the laws of the United States or any state thereof (in the case of the initial
Trustee, the Commonwealth of Massachusetts) , with trust power and authority
to execute and deliver, and to carry out and perform its obligations under the
terms of, the Declaration;
(b) the Property Trustee satisfies the requirements set forth in
Section 5.3(a);
(c) the execution, delivery and performance by the Property Trustee of
the Declaration have been duly authorized by all necessary corporate action on
the part of the Property Trustee. The Declaration has been duly executed and
delivered by the Property Trustee, and, assuming the due authorization,
execution and delivery hereof by the parties hereto (other than the Property
Trustee), it constitutes a legal, valid and binding
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obligation of the Property Trustee, enforceable against it in accordance with
its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency, and other similar laws affecting creditors' rights generally and
to general principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding in
equity or at law);
(d) the execution, delivery and performance of the Declaration by the
Property Trustee does not conflict with or constitute a breach of the charter
or by-laws of the Property Trustee; and
(e) no consent, approval or authorization of, or registration with or
notice to, any banking authorities of the State in which the principal place
of business of the Property Trustee is located (the Commonwealth of
Massachusetts in the case of the initial Property Trustee) or Federal banking
authority is required for the execution, delivery or performance by the
Property Trustee, of the Declaration.
SECTION 13.2 Representations and Warranties of Delaware Trustee.
--------------------------------------------------
The Trustee that acts as initial Delaware Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Delaware Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Delaware Trustee's acceptance of its
appointment as Delaware Trustee, that:
(a) the Delaware Trustee is a corporation or association with trust
powers, duly organized, validly existing and in good standing under the laws
of the United States or the state of Delaware thereof, with trust power and
authority to execute and deliver, and to carry out and perform its obligations
under the terms of, the Declaration;
(b) the Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and the Declaration. Assuming the
due authorization, execution and delivery hereof by the parties hereto (other
than the Delaware Trustee), the Declaration constitutes under Delaware law a
legal, valid and binding obligation of the Delaware Trustee, enforceable
against it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency and other similar laws affecting
creditors' rights generally and to general principles of equity and the
discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law);
(c) the execution, delivery and performance of the Declaration by the
Delaware Trustee does not conflict with or constitute a breach of the articles
of organization or by-laws of the Delaware Trustee;
(d) no consent, approval or authorization of, or registration with or
notice to, any state or federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee, of the
Declaration; and
(e) the Delaware Trustee has its principal place of business in the
State of Delaware.
-39-
<PAGE>
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices.
-------
All notices provided for in this Declaration shall be in writing, duly
signed by the party giving such notice, and shall be delivered, telecopied or
mailed by registered or certified mail, as follows:
(a) if given to the Trust, in care of the Administrative Trustees at
the Trust's mailing address set forth below (or such other address as the
Trust may give notice of to the Holders of the Trust Securities):
WPSR CAPITAL TRUST I
c/o WPS Resources Corporation
700 North Adams Street, P.O. Box 19001
Green Bay, Wisconsin 54307-9001
Attn: Secretary
Telephone: (920) 433-1466
Facsimile: (920) 433-1526
(b) if given to the Property Trustee at the mailing address set forth
below (or such other address as the Property Trustee may give notice of to the
Holders of the Trust Securities):
STATE STREET BANK AND TRUST COMPANY
Two International Place, 4th Floor
P.O. Box 778
Boston, Massachusetts 02102-0778
Attn: Financial Markets Group
Corporate Trust
Telephone: (617) 664-5213
Facsimile: (617) 664-5376
(c) if given to the Delaware Trustee, at the address set forth below
(or such other address as the Delaware Trustee may give notice of to the
Trust).
FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION
One Rodney Square,
920 King Street, 1st Floor
Wilmington, Delaware 19801
Attention: Corporate Trust Administration Department
Telephone: (302) 888-7530
Facsimile: (302) 888-7532
-40-
<PAGE>
(d) if given to the Holder of the Trust Common Securities, at the
mailing address of the Sponsor set forth below (or such other address as the
Holder of the Trust Common Securities may give notice to the Trust):
WPS RESOURCES CORPORATION
700 North Adams Street
P.O. Box 19001
Green Bay, Wisconsin 54307-9001
Attention: Treasurer
(d) if given to any other Holder, at the address set forth on the
books and records of the Trust.
All such notices 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 14.2 Governing Law.
-------------
This Declaration and the rights of the parties hereunder 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 principles of conflict of laws.
SECTION 14.3 Intention of the Parties.
------------------------
It is the intention of the parties hereto that the Trust be classified
for United States federal income tax purposes as a grantor trust. The
provisions of this Declaration shall be interpreted to further this intention
of the parties.
SECTION 14.4 Headings.
--------
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
SECTION 14.5 Successors and Assigns.
----------------------
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
SECTION 14.6 Partial Enforceability.
----------------------
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder
of this Declaration, or the application of such provision to Persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
-41-
<PAGE>
SECTION 14.7 Counterparts.
------------
This Declaration may contain more than one counterpart of the signature
page and this Declaration may be executed by the affixing of the signature of
each party hereto to one of such counterpart signature pages. All of such
counterpart signature pages shall be read as though one, and they shall have
the same force and effect as though all of the signers had signed a single
signature page.
SECTION 14.8 Incorporation by Reference of Annex I
-------------------------------------
The terms and provisions of Annex I, attached hereto, are hereby
incorporated by reference in their entirety into this Declaration.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN
BY OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST
SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS DECLARATION AND AGREEMENT TO
THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE SECURITIES GUARANTIES AND
THE INDENTURE AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, THE DEPOSITARY
OR ITS NOMINEE, THE TRUSTEES, SUCH HOLDER AND SUCH OTHERS THAT THE TERMS AND
PROVISIONS OF THIS DECLARATION SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS
BETWEEN THE TRUST, THE DEPOSITARY OR ITS NOMINEE, THE TRUSTEES, SUCH HOLDER
AND SUCH OTHERS.
-42-
<PAGE>
IN WITNESS WHEREOF, the undersigned have caused these presents to be
executed as of the day and year first above written.
WPS RESOURCES CORPORATION
as Sponsor and Debenture Issuer
By: /s/ Daniel P. Bittner
-------------------------------------
Name: Daniel P. Bittner
Title: Vice President
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity but solely as
Property Trustee
By: /s/ Paul D. Allen
----------------------------------
Name: Paul D. Allen
Title: Vice President
FIRST UNION TRUST COMPANY,
NATIONAL ASSOCIATION
not in its individual capacity
but solely as Delaware Trustee
By: /s/ Stephen J. Kaba
----------------------------------
Name: Stephen J. Kaba
Title: Vice President
/s/ Daniel P. Bittner
------------------------------------------
Daniel P. Bittner
not in its individual capacity
but solely as Administrative Trustee
/s/ Ralph G. Baeten
------------------------------------------
Ralph G. Baeten
not in his individual capacity
but solely as Administrative Trustee
-43-
<PAGE>
ANNEX I
TERMS OF
7.00% Trust Preferred Securities
7.00% Trust Common Securities
Pursuant to Section 7.1 of the Amended and Restated Declaration of
Trust, dated as of July 30, 1998 (as amended from time to time, the
"Declaration"), the designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Trust Preferred Securities and the Trust
Common Securities are set out below (each capitalized term used but not
defined herein has the meaning set forth in the Declaration or, if not defined
in such Declaration, as defined in the Prospectus referred to below):
1. Designation and Number.
----------------------
(a) Trust Preferred Securities. Two million (2,000,000) Trust
--------------------------
Preferred Securities of the Trust with an aggregate liquidation amount with
respect to the assets of the Trust of fifty million dollars ($50,000,000) and
a liquidation amount with respect to the assets of the Trust of $25 per Trust
Preferred Security, are hereby designated, for the purposes of identification,
only as "7.00% Trust Preferred Securities (the "Trust Preferred Securities").
The Trust Preferred Security Certificates evidencing the Trust Preferred
Securities shall be substantially in the form of Exhibit A-1 to the
Declaration, with such changes and additions thereto or deletions therefrom as
may be required by ordinary usage, custom or practice.
(b) Trust Common Securities. Sixty thousand (60,000) Trust Common
-----------------------
Securities of the Trust with an aggregate liquidation amount with respect to
the assets of the Trust of one million five hundred thousand dollars
($1,500,000) and a liquidation amount with respect to the assets of the Trust
of $25 per Trust Common Security, are hereby designated, for the purposes of
identification only, as "7.00% Trust Common Securities" (the "Trust Common
Securities"). The Trust Common Security Certificates evidencing the Trust
Common Securities shall be substantially in the form of Exhibit A-2 to the
Declaration, with such changes and additions thereto or deletions therefrom as
may be required by ordinary usage, custom or practice.
2. Distributions.
-------------
(a) Distributions payable on each Trust Security will be fixed at a
rate per annum of 7.00% (the "Coupon Rate") of the stated liquidation amount
of $25 per Trust Security, such rate being the rate of interest payable on the
Debentures to be held by the Property Trustee. Distributions in arrears for
more than one quarterly Distribution period will bear interest thereon from
and including the last day of such quarterly Distribution period compounded
quarterly at the Coupon Rate (to the extent permitted by applicable law). The
term "Distributions" as used herein includes such cash distributions and any
such interest 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 period will be computed
for any full quarterly Distribution period on the basis of a 360-day year of
twelve 30-day months, and for any period shorter than a full quarterly
Distribution period for which Distributions are computed, Distributions will
be computed on the basis of the actual number of days elapsed.
(b) Distributions on the Trust Securities will be cumulative, will
accrue from July 30, 1998 and will be payable quarterly in arrears, on
March 31, June 30, September 30, and December 31 of each year,
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<PAGE>
commencing September 30, 1998, except as otherwise described below. The
Debenture Issuer has the right under the Indenture to defer payments of
interest by extending the interest payment period from time to time on the
Debentures for a period not exceeding twenty (20) consecutive calendar
quarters (each an "Extension Period"), during which Extension Period no
interest shall be due and payable on the Debentures, provided that no
-------- ----
Extension Period shall last beyond the date of maturity of the Debentures.
There may be multiple Extension Periods of varying lengths during the term of
the Debentures. As a consequence of such deferral, Distributions will also
be deferred. Despite such deferral, quarterly Distributions will continue to
accrue with interest thereon (to the extent permitted by applicable law) at
the Coupon Rate compounded quarterly during any such Extension Period. Prior
to the termination of any such Extension Period, the Debenture Issuer may
further extend such Extension Period; provided that such Extension Period
-------- ----
together with all such previous and further extensions thereof may not exceed
twenty (20) consecutive calendar quarters or extend beyond the maturity date
of the Debentures. 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 Debenture Issuer
may commence a new Extension Period, subject to the above requirements.
(c) Distributions on the Trust Securities will be payable to the
Holders thereof as they appear on the books and records of the Trust on the
relevant record dates. While the Trust Preferred Securities remain in
book-entry only form, the relevant record dates shall be one Business Day
prior to the relevant payment dates which payment dates correspond to the
interest payment dates on the Debentures. Subject to any applicable laws and
regulations and the provisions of the Declaration, each such payment in
respect of the Trust Preferred Securities will be made as described under the
heading "Description of the Trust Preferred Securities -- Book-Entry Issuance
- - The Depository Trust Company" in the Prospectus dated July 27, 1998 (the
"Prospectus"), included in the Registration Statement on Form S-3 of the
Sponsor and the Trust. The relevant record dates for the Trust Common
Securities shall be the same record dates as for the Trust Preferred
Securities. If the Trust Preferred Securities shall not continue to remain in
book-entry only form, the relevant record dates for the Trust Preferred
Securities shall conform to the rules of any securities exchange on which the
securities are listed and, if none, shall be selected by the Administrative
Trustees, which dates shall be at least one Business Day but fewer than sixty
(60) Business Days before the relevant payment dates, which payment dates
correspond to the interest payment dates on the Debentures. Distributions
payable on any Trust Securities that are not punctually paid on any
Distribution payment date, as a result of the Debenture Issuer having failed
to make a payment under the Debentures, will cease to be payable to the Person
in whose name such Trust Securities are registered on the relevant record
date, and such defaulted Distribution will instead be payable to the Person in
whose name such Trust Securities are registered on the special record date or
other specified date determined in accordance with the Indenture. If any date
on which Distributions are payable on the Trust Securities is not a Business
Day, then payment of the Distribution 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 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.
(d) In the event that there is any money or other property held by or
for the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata (as defined herein) among the Holders of the Trust
Securities.
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<PAGE>
3. Liquidation Distribution Upon Dissolution.
-----------------------------------------
In the event of any voluntary or involuntary dissolution or winding-up
of the Trust, the Holders of the Trust Securities on the date of the
dissolution or winding-up as the case may be, will be entitled to receive
solely out of the assets of the Trust available for distribution to Holders of
Trust Securities, after paying or making reasonable provision to pay all
claims against and obligations of the Trust in accordance with Section 3808(e)
of the Business Trust Act, an amount equal to the aggregate of the stated
liquidation amount of $25 per Trust Security plus accrued and unpaid
Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"), unless, in connection with such dissolution or
winding-up, and after paying or making reasonable provision to pay all claims
against and obligations of the Trust in accordance with Section 3808(e) of the
Business Trust Act, Debentures in an aggregate stated principal amount equal
to the aggregate stated liquidation amount of such Trust Securities, with an
interest rate equal to the Coupon Rate, and bearing accrued and unpaid
interest in an amount equal to the accrued and unpaid Distributions on such
Trust Securities, shall be distributed on a Pro Rata basis to the Holders of
the Trust Securities in exchange for such Trust Securities in accordance with
Section 4(e) hereof.
If, upon any such dissolution, winding-up or termination, 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 the amounts payable directly by the Trust on the Trust
Securities shall be paid on a Pro Rata basis.
4. Redemption and Distribution.
---------------------------
(a) Redemption of the Trust Securities will occur simultaneously with
any repayment or redemption of the Debentures. The Debentures will mature on
June 30, 2038 and are redeemable as set forth in this Section 4. Upon the
repayment of the Debentures in whole or in part, whether at maturity or upon
redemption, the proceeds from such repayment or redemption shall be
simultaneously applied to redeem Trust Securities having an aggregate stated
liquidation amount equal to the aggregate principal amount of the Debentures
so repaid or redeemed at a redemption price of $25 per Trust Securities plus
an amount equal to the accrued and unpaid distributions thereon at the date of
redemption, payable in cash (the "Redemption Price").
(b) If fewer than all of the outstanding Trust Securities are to be so
redeemed, the Trust Preferred Securities and the Trust Common Securities will
be redeemed Pro Rata, and the Trust Preferred Securities will be redeemed as
described in Section 4(g)(ii) below.
(c) The Debenture Issuer shall have the right to redeem the
Debentures, (i) on or after July 30, 2003, in whole at any time or in part
from time to time, or (ii) in the event that a Tax Event (as defined below) or
an Investment Company Event (as defined below) shall occur and be continuing,
then prior to July 30, 2003, in whole (but not in part) within 90 days
following the occurrence of such Tax Event or Investment Company Event, upon
not less than 30 nor more than 60 days' prior written notice, at a redemption
price equal to the principal amount of the Debenture, plus any accrued and
unpaid interest, including Additional Interest, if any, thereon to the date of
such redemption (the "Redemption Date"); provided, however, that the Debenture
Issuer shall not redeem the Debentures in part unless all accrued but unpaid
interest has been paid in full on all of the Debentures outstanding for all
quarterly interest periods terminating on or prior to the Redemption Date.
"Tax Event" means that the Administrative Trustees shall have received
an opinion of independent tax counsel 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
I-3
<PAGE>
or any political subdivision or taxing authority thereof or therein, or
(b) any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change
is effective or such pronouncement or decision is announced on or after the
date of original issuance of the Trust Preferred Securities, there is more
than an insubstantial risk that (i) the Trust is, or will be within 90 days of
the date thereof, subject to United States federal income tax with respect to
income accrued or received on the Debentures, (ii) the Trust is, or will be
within 90 days of the date thereof, subject to more than a de minimis amount
of taxes, duties or other governmental charges, or (iii) interest payable on
the Debentures is not, or within 90 days of the date thereof will not be,
deductible, in whole or in part, by the Debenture Issuer for United States
federal income tax purposes.
"Investment Company Event" means 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 the Investment Company Act") 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 the
Investment Company Act becomes effective on or after the date of original
issuance of the Trust Preferred Securities.
(d) The Trust may not redeem fewer than all the outstanding Trust
Securities unless all accrued and unpaid Distributions have been paid on all
Trust Securities for all quarterly Distribution periods terminating on or
before the date of redemption.
(e) If the Sponsor makes the election referred to in Section
8.1(a)(v) of the Declaration, the Administrative Trustees shall dissolve the
Trust and, after paying or making reasonable provision to pay all claims and
obligations of the Trust in accordance with Section 3808(e) of the Business
Trust Act, shall cause Debentures, held by the Property Trustee, having an
aggregate principal amount equal to the aggregate stated liquidation amount
of, with an interest rate identical to the Coupon Rate of, and accrued and
unpaid interest equal to accrued and unpaid Distributions on and having the
same record date for payment, as the Trust Securities, to be distributed to
the Holders of the Trust Securities in liquidation of such Holders' interests
in the Trust. On and from the date fixed by the Administrative Trustees for
any distribution of Debentures and dissolution of the Trust: (i) the Trust
Securities will no longer be deemed to be outstanding, (ii) the Depositary or
its nominee (or any successor Depositary or its nominee) will receive one or
more global certificate or certificates representing the Debentures to be
delivered upon such distribution, and having an aggregate principal amount
equal to the aggregate stated liquidation amount of, with an interest rate
identical to the Coupon Rate of, and accrued and unpaid interest equal to
accrued and unpaid Distributions on such Trust Securities and (iii) any
securities representing Trust Preferred Securities not held by the Depositary
or its nominee will be deemed to represent Debentures having a principal
amount equal to the stated liquidation amount of such Trust Preferred
Securities and bearing accrued and unpaid interest in an amount equal to the
accrued and unpaid Distributions on such Trust Preferred Securities until such
certificates are presented to the Debenture Issuer for transfer or reissuance.
Any certificates representing Trust Securities, except for certificates
representing Trust Preferred Securities held by the Depositary or its nominee
(or any successor Clearing Agency or its nominee), will be deemed to represent
beneficial interests in the Debentures having an aggregate principal amount
equal to the aggregate stated liquidation amount of, with an interest rate
identical to the Coupon Rate of, and accrued and unpaid interest equal to
accrued and unpaid Distributions on such Trust Securities until such
certificates are presented to the Debenture Issuer for transfer or reissue.
(f) If the Debentures are distributed to holders of the Trust
Securities pursuant to Section 4(e), the Debenture Issuer will use its best
efforts to have the Debentures listed for trading on the New York Stock
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Exchange or on such other exchange on which the Trust Preferred Securities
were listed immediately prior to the distribution of the Debentures.
(g) "Redemption or Distribution Procedures."
(i) Notice of any redemption of, or notice of distribution of
Debentures in exchange for the Trust Securities (a
"Redemption/Distribution Notice") will be given by the Trust by mail to
each Holder of Trust Securities to be redeemed or exchanged not fewer
than thirty (30) nor more than sixty (60) days before the date fixed for
redemption or exchange thereof which, in the case of a redemption, will
be the date fixed for redemption of the Debentures. For purposes of the
calculation of the date of redemption or exchange and the dates on which
notices are given pursuant to this Section 4(g)(i), a Redemption/
Distribution Notice shall be deemed to be given on the day such notice
is first mailed by first-class mail, postage prepaid, to Holders of
Trust Securities. Each Redemption/Distribution Notice shall be
addressed to the Holders of Trust Securities at the address of each such
Holder appearing in the books and records of the Trust. No defect in
the Redemption/ Distribution Notice or in the mailing thereof with
respect to any Holder shall affect the validity of the redemption or
exchange proceedings with respect to any other Holder.
(ii) In the event that fewer than all the outstanding Trust
Preferred Securities are to be redeemed, the Trust Preferred Securities
to be redeemed shall be redeemed Pro Rata from each Holder of Trust
Preferred Securities, it being understood that, in respect of Trust
Preferred Securities registered in the name of and held of record by the
Depositary or its nominee (or any successor Clearing Agency or its
nominee), the distribution of the proceeds of such redemption will be
made to each Clearing Agency Participant (or Person on whose behalf such
nominee holds such Trust Preferred Securities) in accordance with the
procedures applied by such agency or nominee.
(iii) If Trust Securities are to be redeemed and the Trust gives
a Redemption/Distribution Notice, which notice may only be issued if the
Debentures are redeemed as set out in this Section 4 (which notice will
be irrevocable), then (A) while the Trust Preferred Securities are in
book-entry only form, with respect to the Trust Preferred Securities, by
12:00 noon, New York City time, on the redemption date, provided that
the Debenture Issuer has paid the Property Trustee a sufficient amount
of cash in connection with the related redemption or maturity of the
Debentures, the Property Trustee will deposit irrevocably with the
Depositary or its nominee (or successor Clearing Agency or its nominee)
funds sufficient to pay the applicable Redemption Price with respect to
the Trust Preferred Securities and will give the Depositary irrevocable
instructions and authority to pay the Redemption Price to the Trust
Preferred Security Beneficial Owners, and (B) with respect to Trust
Preferred Securities issued in definitive form and Trust Common
Securities, provided that the Debenture Issuer has paid the Property
Trustee a sufficient amount of cash in connection with the related
redemption or maturity of the Debentures, the Property Trustee will pay
the relevant Redemption Price to the Holders of such Trust Securities by
check mailed to the address of the relevant Holder appearing on the
books and records of the Trust on the redemption date. If a
Redemption/Distribution Notice shall have been given and funds deposited
as required, if applicable, then immediately prior to the close of
business on the date of such deposit, or on the redemption date, as
applicable, Distributions will cease to accrue on the Trust Securities
so called for redemption and all rights of Holders of such Trust
Securities so called for redemption will cease, except the right of the
Holders of such Trust Securities to receive the Redemption Price, but
without interest on such Redemption Price. Neither the Administrative
Trustees nor the Trust shall be required to register or cause to be
registered the transfer of any Trust Securities that have been so called
for redemption. If any date fixed for redemption of
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<PAGE>
Trust Securities 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 fixed for redemption. If payment of the Redemption Price in
respect of any Trust Securities is improperly withheld or refused and
not paid either by the Property Trustee or by the Sponsor as guarantor
pursuant to the relevant Trust Securities Guarantee, Distributions on
such Trust Securities will continue to accrue from the original
redemption date to the actual date of payment, in which case the actual
payment date will be considered the date fixed for redemption for
purposes of calculating the Redemption Price.
(iv) Redemption/Distribution Notices shall be sent by the
Administrative Trustees on behalf of the Trust to (A) in respect of the
Trust Preferred Securities, the Depositary or its nominee (or any
successor Clearing Agency or its nominee) if the Global Certificate(s)
have been issued or, if Definitive Trust Preferred Security Certificates
have been issued, to the Holder thereof, and (B) in respect of the Trust
Common Securities, to the Holder thereof.
(v) Subject to the foregoing and applicable law (including,
without limitation, United States federal securities laws), the Sponsor
or any of its subsidiaries may at any time and from time to time
purchase outstanding Trust Preferred Securities by tender, in the open
market or by private agreement.
5. Voting Rights - Trust Preferred Securities.
------------------------------------------
(a) Except as provided under Sections 5(b) and 7 and as otherwise
required by law and the Declaration, the Holders of the Trust Preferred
Securities will have no voting rights.
(b) The Holders of a Majority in liquidation amount of the Trust
Preferred Securities, voting separately as a class, may (i) direct 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 the Declaration, including directing the time, method and place
of conducting any proceeding for any remedy available to the Debt Trustee, or
exercising any trust or power conferred on the Debt Trustee, with respect to
the Debentures, (ii) waive any past default and its consequences that are
waivable under 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, modification or termination of the Indenture
or the Debentures, where such consent shall be required; provided, however,
that, where a consent or action under the Indenture would require the consent
or act of the Holders of greater than a majority of the Holders in principal
amount of Debentures affected thereby (a "Super-Majority"), the Property
Trustee may only give such consent or take such action at the written
direction of the Holders of at least the proportion in liquidation amount of
the Trust Preferred Securities which the relevant Super-Majority represents of
the aggregate principal amount of the Debentures outstanding. The Property
Trustee shall not take any action in accordance with the directions of the
Holders of the Trust Preferred Securities under this paragraph unless the
Property Trustee has obtained an opinion of independent tax counsel to the
effect that, for the purposes of United States federal income tax, the Trust
will be classified as a grantor trust notwithstanding such action. If the
Property Trustee fails to enforce its rights under the Declaration, any Holder
of Trust Preferred Securities may, to the fullest extent permitted by law,
institute legal proceedings directly against the Debenture Issuer or any other
person or entity to enforce the Property Trustee's rights under the
Declaration without first instituting any legal proceedings against the
Property Trustee or any other person or entity. In addition, if an Event of
Default under the Declaration has
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occurred and is continuing due to the failure of the Debenture Issuer to pay
interest, principal or other required payment on the Debentures issued to the
Trust on the date such interest, principal or other required payment is
otherwise payable (or, in the case of redemption, on the redemption date),
then a Holder of Trust Preferred Securities may directly institute a
proceeding against the Debenture Issuer for enforcement of payment to the
Holder of the Trust Preferred Securities of the principal, interest or other
required payment on Debentures having a principal amount equal to the
liquidation amount of the Trust Preferred Trust Securities of such Holder on
or after the respective due dates specified in the Debentures. In connection
with such Direct Action, WPSR will be subrogated to the rights of such Holder
of Trust Preferred Securities to the extent of any payment made by WPSR to
such Holder of Trust Preferred Securities in such Direct Action.
Any approval or direction of Holders of Trust Preferred Securities may
be given at a separate meeting of Holders of Trust Preferred Securities
convened for such purpose, at a meeting of all of the Holders of Trust
Securities of the Trust or pursuant to written consent. The Administrative
Trustees will cause a notice of any meeting at which Holders of Trust
Preferred Securities are entitled to vote, or of any matter upon which action
by written consent of such Holders is to be taken, to be mailed to each Holder
of record of Trust Preferred Securities. Each such notice will include a
statement setting forth (i) the date of such meeting or the date by which such
action is to be taken, (ii) a description of any resolution proposed for
adoption at such meeting on which such Holders are entitled to vote or of such
matter upon which written consent is sought, and (iii) instructions for the
delivery of proxies or consents.
No vote or consent of the Holders of the Trust Preferred Securities will
be required for the Trust to redeem and cancel Trust Preferred Securities or
to distribute the Debentures in accordance with the Declaration and the terms
of the Trust Securities.
Notwithstanding that Holders of Trust Preferred Securities are entitled
to vote or consent under any of the circumstances described above, any of the
Trust Preferred Securities that are owned by the Sponsor or any Affiliate of
the Sponsor shall not be entitled to vote or consent and shall, for purposes
of such vote or consent, be treated as if they were not outstanding.
If any Event of Default shall occur and so long as such Event of
Default shall continue, the Property Trustee and the Delaware Trustee may be
removed and replaced by the Holders of a Majority in liquidation amount of the
outstanding Trust Preferred Securities voting as a class at a meeting of the
Holders of the Trust Preferred Securities.
6. Voting Rights - Trust Common Securities.
---------------------------------------
(a) Except as provided under Sections 6(b), (c) and 7 and as otherwise
required by law and the Declaration, the Holders of the Trust Common
Securities will have no voting rights.
(b) The Holders of the Trust Common Securities are entitled, in
accordance with Article V of the Declaration, to vote to appoint, remove, or
replace any Trustee or to increase or decrease the number of Trustees,
provided, however, if an Event of Default shall occur and so long as such
Event of Default shall continue the Property Trustee and the Delaware Trustee
may not be removed and replaced by the Holders of the Trust Common Securities.
(c) Subject to Section 2.6 of the Declaration and only after the Event
of Default with respect to the Trust Preferred Securities has been cured,
waived, or otherwise eliminated, the Holders of a Majority in liquidation
amount of the Trust Common Securities, voting separately as a class, may (i)
direct the time,
I-7
<PAGE>
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 the Declaration, including directing the time, method and place
of conducting any proceeding for any remedy available to the Debt Trustee, or
exercising any trust or power conferred on the Debt Trustee, with respect to
the Debentures, (ii) waive any past default and its consequences that are
waivable under the Indenture or (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, modification or termination of the Indenture
or the Debentures, where such consent shall be required; provided that, where
a consent or action under the Indenture would require the consent or act of a
Super-Majority of the Holders of the Debentures affected thereby, the Property
Trustee may only give such consent or take such action at the written
direction of the Holders of at least the proportion in liquidation amount of
the Trust Common Securities which the relevant Super-Majority represents of
the aggregate principal amount of the Debentures outstanding. The Property
Trustee shall not take any action in accordance with the directions of the
Holders of the Trust Common Securities under this paragraph unless the
Property Trustee has obtained an opinion of independent tax counsel to the
effect that, for the purposes of United States federal income tax, the Trust
will not be classified as other than a grantor trust on account of such
action. If the Property Trustee fails to enforce its rights under the
Declaration, any Holder of Trust Common Securities may, to the fullest extent
permitted by law, institute legal proceedings directly against any Person to
enforce the Property Trustee's rights under the Declaration, without first
instituting a legal proceeding against the Property Trustee or any other
Person. Notwithstanding the foregoing, if an Event of Default under the
Declaration has occurred and is continuing due to the failure of the Debenture
Issuer to pay interest, principal or other required payment on the Debentures
on the date such interest or principal is otherwise payable, a Holder of Trust
Common Securities may directly institute a proceeding against the Debenture
Issuer for enforcement of payment to the Holder of the Trust Common Securities
of the principal, interest or other required payment on the Debentures having
a principal amount equal to the stated liquidation amount of the Trust Common
Securities of such Holder on or after the respective due dates specified in
the Debentures.
Any approval or direction of Holders of Trust Common Securities may be
given at a separate meeting of Holders of Trust Common Securities convened for
such purpose, at a meeting of all of the Holders of Trust Securities or
pursuant to written consent. The Administrative Trustees will cause a notice
of any meeting at which Holders of Trust Common Securities are entitled to
vote, or of any matter upon which action by written consent of such Holders is
to be taken, to be mailed to each Holder of record of Trust Common Securities.
Each such notice will include a statement setting forth (i) the date of such
meeting or the date by which such action is to be taken, (ii) a description of
any resolution proposed for adoption at such meeting on which such Holders are
entitled to vote or of such matter upon which written consent is sought and
(iii) instructions for the delivery of proxies or consents.
No vote or consent of the Holders of the Trust Common Securities will be
required for the Trust to redeem and cancel Trust Common Securities or to
distribute the Debentures in accordance with the Declaration and the terms of
the Trust Securities.
7. Amendments to Declaration and Indenture. In addition to any
---------------------------------------
requirements under Section 12.1 of the Declaration, if any proposed amendment
to the Declaration provides for, or the Administrative Trustees otherwise
propose to effect, (i) any action that would materially adversely affect the
powers, preferences or special rights of the Trust Securities, whether by way
of amendment to the Declaration or otherwise, or (ii) the dissolution,
winding-up or termination of the Trust, other than as described in Section 8.1
of the Declaration, then the Holders of outstanding Trust Securities, voting
together as a single class, will be entitled to vote on such amendment or
proposal (but not on any other 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
I-8
<PAGE>
liquidation amount of the Trust Securities; provided, however, that a
reduction of the aggregate liquidation amount or the distribution rate, or a
change in the terms governing payment dates or maturities of the Trust
Preferred Securities shall not be permitted without the consent of each Holder
of the Trust Preferred Securities; and provided further that, if any amendment
or proposal referred to in clause (i) above would materially adversely affect
only the Trust Preferred Securities or only the Trust Common Securities, then
only the affected 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 a Majority in liquidation amount of such class of Trust Securities.
Notwithstanding the foregoing, no amendment or modification may be made to the
Declaration if such amendment or modification would (i) cause the Trust to be
classified as other than a grantor trust for United States federal income tax
purposes, (ii) reduce or otherwise adversely affect the powers of the Property
Trustee, or (iii) cause the Trust to be deemed an "investment company" which
is required to be registered under the Investment Company Act.
8. Pro Rata. A reference in these terms of the Trust Securities to
--------
any payment, distribution or treatment as being "Pro Rata" shall mean pro rata
to each Holder of Trust Securities according to the aggregate liquidation
amount of the Trust Securities held by the relevant Holder in relation to the
aggregate liquidation amount of all Trust Securities outstanding unless, in
relation to a payment, an Event of Default under the Declaration has occurred
and is continuing, in which case any funds available to make such payment
shall be paid first to each Holder of the Trust Preferred Securities pro rata
according to the aggregate liquidation amount of Trust Preferred Securities
held by the relevant Holder relative to the aggregate liquidation amount of
all Trust Preferred Securities outstanding, and only after satisfaction of all
amounts owed to the Holders of the Trust Preferred Securities, to each Holder
of Trust Common Securities pro rata according to the aggregate liquidation
amount of Trust Common Securities held by the relevant Holder relative to the
aggregate liquidation amount of all Trust Common Securities outstanding.
9. Ranking. The Trust Preferred Securities rank pari passu and
-------
payment thereon shall be made Pro Rata with the Trust Common Securities except
that, where an Event of Default occurs and is continuing under the Indenture
in respect of the Debentures held by the Property Trustee, the rights of
Holders of the Trust Common Securities to payment in respect of Distributions
and payments upon liquidation, redemption and otherwise are subordinated to
the rights to payment of the Holders of the Trust Preferred Securities and no
payment of any Distribution on, or Redemption Price of, any of the Trust
Common Securities and no other payment on account of the liquidation of the
Trust Common Securities, shall be made unless payment in full in cash of all
accumulated and unpaid Distributions on all of the outstanding Trust 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 of the outstanding Trust Preferred Securities then
being redeemed, shall have been made or provided for.
10. Listing. The Administrative Trustees shall use their best
-------
efforts to cause the Trust Preferred Securities to be listed for trading on
the New York Stock Exchange.
11. Acceptance of Trust Securities Guaranties and Indenture. Each
-------------------------------------------------------
Holder of Trust Preferred Securities and Trust Common Securities, by the
acceptance thereof, agrees to the provisions of the Trust Preferred Securities
Guarantee and the Trust Common Securities Guarantee, respectively, including
the subordination provisions therein, and to the provisions of the Indenture.
12. No Preemptive Rights. The Holders of the Trust Securities shall
--------------------
have no preemptive or similar rights to subscribe for any additional
securities.
I-9
<PAGE>
13. Miscellaneous. These terms constitute a part of the Declaration.
-------------
The Sponsor will provide a copy of the Declaration, the Trust Preferred
Securities Guarantee or the Trust Common Securities Guarantee (as may be
appropriate), and the Indenture to a Holder without charge on written request
to the Sponsor at its principal place of business.
I-10
<PAGE>
EXHIBIT A-1
FORM OF TRUST PREFERRED SECURITY CERTIFICATE
[IF THE TRUST PREFERRED SECURITY CERTIFICATE IS TO BE A GLOBAL
CERTIFICATE INSERT - This Trust Preferred Security is a Global Certificate
within the meaning of the Declaration hereinafter referred to and is
registered in the name of a Depositary or a nominee of the Depositary. This
Trust Preferred Security is exchangeable for Trust Preferred Securities
registered in the name of a person other than the Depositary or its nominee
only in the limited circumstances described in the Declaration, and no
transfer of this Trust Preferred Security (other than a transfer of this Trust
Preferred Security as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary) may be registered except in limited circumstances described in the
Declaration.
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to WPSR Capital
Trust I or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment hereon is made to Cede & Co. or to such other entity as is requested
by an authorized representative of DTC), 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 Number of Trust Preferred Securities
CUSIP NO. [92930N 2 00]
Certificate Evidencing Trust Preferred Securities
of
WPSR CAPITAL TRUST I
7.00% Trust Preferred Securities
(liquidation amount $25 per Trust Preferred Security)
WPSR CAPITAL TRUST I, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that
--------------
(the "Holder") is the registered owner of trust preferred securities of the
Trust, representing undivided beneficial interests in the assets of the Trust,
designated the 7.00% Trust Preferred Securities (liquidation amount $25 per
Trust Preferred Security) (the "Trust Preferred Securities"). The Trust
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. The designation, rights,
privileges, restrictions, preferences and other terms and provisions of the
Trust Preferred Securities are set forth in, and this certificate and the
Trust Preferred Securities represented hereby are issued and shall in all
respects be subject to the provisions of the Amended and Restated Declaration
of Trust of the Trust dated as of July 30, 1998, as the same may be amended
from time to time (the "Declaration"), including the designation of the terms
of the Trust Preferred Securities set forth in Annex I to the Declaration.
Capitalized terms used herein but not defined shall have the meaning given
them in the
A1-1
<PAGE>
Declaration. The Holder is entitled to the benefits of the Trust Preferred
Securities Guarantee to the extent provided therein. The Sponsor will provide
a copy of the Declaration, the Trust Preferred Securities Guarantee and the
Indenture to a Holder without charge upon written request to the Sponsor at
its principal place of business.
Upon receipt of this certificate, the Holder is bound by the Declaration
and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Trust Preferred
Securities as evidence of indirect beneficial ownership in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this
------
day of
-----------, -----.
WPSR CAPITAL TRUST I
By:
-------------------------------------
Name: ,
---------------------------
as Administrative Trustee
A1-2
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Trust Preferred Security will be fixed at
a rate per annum of 7.00% (the "Coupon Rate") of the stated liquidation
amount of $25 per Trust Preferred Security, such rate being the rate of
interest payable on the Debentures to be held by the Property Trustee.
Distributions in arrears for more than one quarterly Distribution period will
bear interest thereon compounded quarterly at the Coupon Rate (to the extent
permitted by applicable law). The term "Distributions" as used herein
includes such cash distributions and any such interest 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 period will be computed for any full quarterly
Distribution period on the basis of a 360-day year of twelve 30-day months,
and for any period shorter than a full quarterly Distribution period for which
distributions are computed, distributions will be computed on the basis of the
actual number of days elapsed.
Except as otherwise described below, Distributions on the Trust
Preferred Securities will be cumulative, will accrue from the date of original
issuance and will be payable quarterly in arrears, on March 31, June 30,
September 31 and December 31 of each year, commencing on September 30, 1998 to
the Holders thereof as they appear on the books and records of the Trust on
the relevant record dates. The Debenture Issuer has the right under the
Indenture to defer payments of interest by extending the interest payment
period from time to time on the Debentures for a period not exceeding 20
consecutive calendar quarters (each an "Extension Period") provided that no
Extension Period shall last beyond the date of the maturity of the Debentures
and, as a consequence of such deferral, Distributions will also be deferred.
Despite such deferral, quarterly Distributions will continue to accrue with
interest thereon (to the extent permitted by applicable law) at the Coupon
Rate compounded quarterly during any such Extension Period. Prior to the
termination of any such Extension Period, the Debenture Issuer may further
extend such Extension Period; provided that such Extension Period together
with all such previous and further extensions thereof may not exceed 20
consecutive calendar quarters or extend beyond the date of maturity of the
Debentures. 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 Debenture Issuer may
commence a new Extension Period, subject to the above requirements.
The Trust Preferred Securities shall be redeemable as provided in the
Declaration.
A1-3
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Trust Preferred
Security Certificate to:
- ------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints agent to
-----------------------------------------
transfer this Trust 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 Trust
Preferred Security Certificate)
A1-4
<PAGE>
EXHIBIT A-2
FORM OF TRUST COMMON SECURITY CERTIFICATE
Certificate Number Number of Trust Common Securities
Certificate Evidencing Trust Common Securities
of
WPSR CAPITAL TRUST I
7.00% Trust Common Securities (liquidation amount $25 per Common Security)
WPSR CAPITAL TRUST I, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that
---------------
(the "Holder") is the registered owner of trust common securities of the
Trust, representing undivided beneficial interests in the assets of the Trust,
designated the 7.00% Trust Common Securities (liquidation amount $25 per Trust
Common Security) (the "Trust Common Securities"). The designation, rights,
privileges, restrictions, preferences and other terms and provisions of the
Trust Common Securities are set forth in, and this certificate and the Trust
Common Securities represented hereby are issued and shall in all respects be
subject to the provisions of the Amended and Restated Declaration of Trust of
the Trust dated as of July 30, 1998, as the same may be amended from time to
time (the "Declaration"), including the designation of the terms of the Trust
Common Securities set forth in Annex I to the Declaration. Capitalized terms
used herein but not defined shall have the meaning given them in the
Declaration. The Holder is entitled to the benefits of the Trust Common
Securities Guarantee to the extent provided therein. The Sponsor will provide
a copy of the Declaration, the Trust Common Securities Guarantee and the
Indenture to a Holder without charge upon written request to the Sponsor at
its principal place of business. THE TRUST COMMON SECURITIES ARE NOT
TRANSFERRABLE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
DECLARATION.
Upon receipt of this certificate, the Holder is bound by the Declaration
and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Trust Common
Securities as evidence of indirect beneficial ownership in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this
------
day of , .
------------------ -------
WPSR CAPITAL TRUST I
By:
--------------------------------
Name:
------------------------------
as Administrative Trustee
A2-1
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Trust Common Security will be fixed at a
rate per annum of 7.00% (the "Coupon Rate") of the stated liquidation amount
of $25 per Trust Common Security, such rate being the rate of interest payable
on the Debentures to be held by the Property Trustee. Distributions in
arrears for more than one quarterly Distribution period will bear interest
thereon compounded quarterly at the Coupon Rate (to the extent permitted by
applicable law). The term "Distributions" as used herein includes such cash
distributions and any such interest 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 period will be computed for any full quarterly Distribution period on the
basis of a 360-day year of twelve 30-day months, and for any period shorter
than a full quarterly Distribution period for which Distributions are
computed, distributions will be computed on the basis of the actual number of
days elapsed.
Except as otherwise described below, Distributions on the Trust Common
Securities will be cumulative, will accrue from the date of original issuance
and will be payable quarterly in arrears, on March 31, June 30, September 31
and December 31 of each year, commencing on September 30, 1998, to the Holders
thereof as they appear on the books and records of the Trust on the relevant
record dates. The Debenture Issuer has the right under the Indenture to defer
payments of interest by extending the interest payment period from time to
time on the Debentures for a period not exceeding 20 consecutive calendar
quarters (each an "Extension Period") provided that no Extension Period shall
last beyond the date of the maturity of the Debentures and, as a consequence
of such deferral, Distributions will also be deferred. Despite such deferral,
quarterly Distributions will continue to accrue with interest thereon (to the
extent permitted by applicable law) at the Coupon Rate compounded quarterly
during any such Extension Period. Prior to the termination of any such
Extension Period, the Debenture Issuer may further extend such Extension
Period; provided that such Extension Period together with all such previous
and further extensions thereof may not exceed 20 consecutive calendar quarters
or extend beyond the date of maturity of the Debentures. 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 Debenture Issuer may commence a new Extension Period,
subject to the above requirements.
The Trust Common Securities shall be redeemable as provided in the
Declaration.
A2-2
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Trust Common
Security Certificate to:
- ---------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints agent
---------------------------------------
to transfer this Trust Common 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 Trust Common Security Certificate)
A2-3
<PAGE>
EXHIBIT B
SPECIMEN OF DEBENTURE
B-1
<PAGE>
EXHIBIT C
UNDERWRITING AGREEMENT
C-1
<PAGE>
EXHIBIT 4.2
============================================================================
WPS RESOURCES CORPORATION
ISSUER
AND
STATE STREET BANK AND TRUST COMPANY
TRUSTEE
INDENTURE
DATED AS OF JULY 30, 1998
SUBORDINATED DEBT SECURITIES
============================================================================
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions of Terms . . . . . . . . . . . . . . . . 1
ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF DEBT SECURITIES
SECTION 2.1. Designation and Terms of Debt Securities . . . . . . 6
SECTION 2.2. Form of Debt Securities and Trustee's Certificate. . 8
SECTION 2.3. Denominations; Provisions for Payment. . . . . . . . 8
SECTION 2.4. Execution and Authentication . . . . . . . . . . . . 9
SECTION 2.5. Registration of Transfer and Exchange. . . . . . . . 10
SECTION 2.6. Temporary Securities . . . . . . . . . . . . . . . . 11
SECTION 2.7. Mutilated, Destroyed, Lost or Stolen Debt
Securities . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.8. Cancellation . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.9. Benefits of Indenture. . . . . . . . . . . . . . . . 12
SECTION 2.10. Authenticating Agent . . . . . . . . . . . . . . . . 13
SECTION 2.11. Global Securities. . . . . . . . . . . . . . . . . . 13
ARTICLE III
REDEMPTION OF DEBT SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.1. Redemption . . . . . . . . . . . . . . . . . . . . . 14
SECTION 3.2. Notice of Redemption . . . . . . . . . . . . . . . . 14
SECTION 3.3. Payment Upon Redemption. . . . . . . . . . . . . . . 15
SECTION 3.4. Sinking Fund . . . . . . . . . . . . . . . . . . . . 16
SECTION 3.5. Satisfaction of Sinking Fund Payments with Debt
Securities . . . . . . . . . . . . . . . . . . . . . 16
SECTION 3.6. Redemption of Debt Securities for Sinking Fund . . . 16
ARTICLE IV
COVENANTS OF THE COMPANY
SECTION 4.1. Payment of Principal, Premium and Interest . . . . . 17
SECTION 4.2. Maintenance of Office or Agency. . . . . . . . . . . 17
SECTION 4.3. Paying Agents. . . . . . . . . . . . . . . . . . . . 17
SECTION 4.4. Appointment to Fill Vacancy in Office of Trustee . . 18
SECTION 4.5. Compliance with Consolidation Provisions . . . . . . 18
SECTION 4.6. Limitation on Dividends. . . . . . . . . . . . . . . 18
SECTION 4.7. Covenants as to WPSR Trusts. . . . . . . . . . . . . 19
SECTION 4.8. Corporate Existence. . . . . . . . . . . . . . . . . 19
SECTION 4.9. Notice of Default. . . . . . . . . . . . . . . . . . 20
i
<PAGE>
ARTICLE V
SECURITYHOLDERS, LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 5.1. Company to Furnish Trustee Names and Addresses
of Securityholders . . . . . . . . . . . . . . . . . 20
SECTION 5.2. Preservation Of Information; Communications With
Securityholders. . . . . . . . . . . . . . . . . . . 20
SECTION 5.3. Reports By the Company . . . . . . . . . . . . . . . 20
SECTION 5.4. Reports by the Trustee . . . . . . . . . . . . . . . 21
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.1. Events of Default. . . . . . . . . . . . . . . . . . 21
SECTION 6.2. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . . 23
SECTION 6.3. Application of Moneys Collected. . . . . . . . . . . 24
SECTION 6.4. Limitation on Suits. . . . . . . . . . . . . . . . . 25
SECTION 6.5. Rights and Remedies Cumulative; Delay or Omission
Not Waiver . . . . . . . . . . . . . . . . . . . . . 25
SECTION 6.6. Control by Securityholders . . . . . . . . . . . . . 26
SECTION 6.7. Undertaking to Pay Costs . . . . . . . . . . . . . . 26
SECTION 6.8. Acknowledgement Regarding Trust Preferred
Securities . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.1. Certain Duties and Responsibilities of Trustee . . . 27
SECTION 7.2. Certain Rights of Trustee. . . . . . . . . . . . . . 28
SECTION 7.3. Trustee Not Responsible for Recitals or Issuance
of Debt. . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 7.4. May Hold Debt Securities . . . . . . . . . . . . . . 29
SECTION 7.5. Moneys Held in Trust . . . . . . . . . . . . . . . . 29
SECTION 7.6. Compensation and Reimbursement . . . . . . . . . . . 29
SECTION 7.7. Reliance on Officers' Certificate. . . . . . . . . . 30
SECTION 7.8. Qualification; Conflicting Interests . . . . . . . . 30
SECTION 7.9. Corporate Trustee Required; Eligibility. . . . . . . 30
SECTION 7.10. Resignation and Removal; Appointment of Successor. . 31
SECTION 7.11. Acceptance of Appointment By Successor . . . . . . . 32
SECTION 7.12. Merger, Conversion, Consolidation or Succession
to Business . . . . . . . . . . . . . . . . . . . . 33
SECTION 7.13. Preferential Collection of Claims Against the
Company . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
SECTION 8.1. Evidence of Action by Securityholders. . . . . . . . 33
SECTION 8.2. Proof of Execution by Securityholders. . . . . . . . 34
SECTION 8.3. Who May be Deemed Owners . . . . . . . . . . . . . . 34
SECTION 8.4. Certain Debt Securities Owned by Company
Disregarded . . . . . . . . . . . . . . . . . . . . 34
SECTION 8.5. Actions Binding on Future Securityholders. . . . . . 35
ii
<PAGE>
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures Without the Consent of
Securityholders . . . . . . . . . . . . . . . . . . 35
SECTION 9.2. Supplemental Indentures With Consent of
Securityholders . . . . . . . . . . . . . . . . . . 36
SECTION 9.3. Effect of Supplemental Indentures. . . . . . . . . . 36
SECTION 9.4. Debt Securities Affected by Supplemental
Indentures . . . . . . . . . . . . . . . . . . . . . 37
SECTION 9.5. Execution of Supplemental Indentures . . . . . . . . 37
ARTICLE X
SUCCESSOR CORPORATION
SECTION 10.1. Company May Consolidate, Etc . . . . . . . . . . . . 37
SECTION 10.2 Successor Corporation Substituted. . . . . . . . . . 38
SECTION 10.3 Evidence of Consolidation, Etc. to Trustee . . . . . 38
ARTICLE XI
SATISFACTION AND DISCHARGE
SECTION 11.1. Satisfaction and Discharge of Indenture. . . . . . . 39
SECTION 11.2. Discharge of Obligations . . . . . . . . . . . . . . 39
SECTION 11.3. Deposited Moneys to be Held In Trust . . . . . . . . 40
SECTION 11.4. Payment of Moneys Held by Paying Agents. . . . . . . 40
SECTION 11.5. Repayment to Company . . . . . . . . . . . . . . . . 40
ARTICLE XII
IMMUNITY OF INCORPORATORS, SHAREHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.1. No Recourse. . . . . . . . . . . . . . . . . . . . . 41
ARTICLE XIII
SUBORDINATION OF DEBT SECURITIES
SECTION 13.1. Agreement to Subordinate.. . . . . . . . . . . . . . 41
SECTION 13.2. Default on Senior Indebtedness.. . . . . . . . . . . 42
SECTION 13.3 Liquidation; Dissolution; Bankruptcy.. . . . . . . . 42
SECTION 13.4. Subrogation. . . . . . . . . . . . . . . . . . . . . 43
SECTION 13.5. Trustee to Effectuate Subordination. . . . . . . . . 44
SECTION 13.6. Notice by the Company. . . . . . . . . . . . . . . . 44
SECTION 13.7. Rights of the Trustee; Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . 45
SECTION 13.8. Subordination May Not Be Impaired. . . . . . . . . . 45
ARTICLE XIV
MISCELLANEOUS PROVISIONS
iii
<PAGE>
SECTION 14.1. Effect on Successors and Assigns . . . . . . . . . . 46
SECTION 14.2. Actions by Successor . . . . . . . . . . . . . . . . 46
SECTION 14.3. Surrender of Company Powers. . . . . . . . . . . . . 46
SECTION 14.4. Notices. . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 14.5. Governing Law. . . . . . . . . . . . . . . . . . . . 46
SECTION 14.6. Treatment of the Debt Securities as Debt . . . . . . 46
SECTION 14.7. Compliance Certificates and Opinions.. . . . . . . . 47
SECTION 14.8. Payments on Business Days. . . . . . . . . . . . . . 47
SECTION 14.9. Conflict with Trust Indenture Act. . . . . . . . . . 47
SECTION 14.10. Counterparts.. . . . . . . . . . . . . . . . . . . . 47
SECTION 14.11. Separability.. . . . . . . . . . . . . . . . . . . . 47
SECTION 14.12. Assignment.. . . . . . . . . . . . . . . . . . . . . 48
iv
<PAGE>
Section of
Trust Indenture Act Section of
of 1939, as amended Indenture
- ------------------- ----------
310(a) . . . . . . . . . . . . . . . . . . . . . . . . . . .7.9
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . . .7.8
. . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
310(c) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . .7.13(a)
311(b) . . . . . . . . . . . . . . . . . . . . . . . . .7.13(b)
311(c) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1
. . . . . . . . . . . . . . . . . . . . . . . . . . 5.2(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . 5.2(b)
312(c) . . . . . . . . . . . . . . . . . . . . . . . . . 5.2(c)
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . 5.4(a)
313(b) . . . . . . . . . . . . . . . . . . . . . . . . . 5.4(b)
313(c) . . . . . . . . . . . . . . . . . . . . . . . . . 5.4(a)
. . . . . . . . . . . . . . . . . . . . . . . . . . 5.4(b)
313(d) . . . . . . . . . . . . . . . . . . . . . . . . . 5.4(c)
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . .5.3
314(b) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 14.6
314(d) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 14.6
314(f) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . 7.1(a)
. . . . . . . . . . . . . . . . . . . . . . . . . . . .7.2
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . .6.7
315(c) . . . . . . . . . . . . . . . . . . . . . . . . . . .7.1
315(d) . . . . . . . . . . . . . . . . . . . . . . . . . 7.1(b)
. . . . . . . . . . . . . . . . . . . . . . . . . . 7.1(c)
315(e) . . . . . . . . . . . . . . . . . . . . . . . . . . .6.7
316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . .6.6
. . . . . . . . . . . . . . . . . . . . . . . . . . . .8.4
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . .6.4
316(c) . . . . . . . . . . . . . . . . . . . . . . . . . . .8.1
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . . .6.2
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . . .4.3
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 14.8
- ----------------------
Note: This Cross-Reference Table shall not, for any purpose, be
deemed to be part of the Indenture and shall not have any
bearing on the interpretation of its terms or provisions.
v
<PAGE>
THIS INDENTURE, dated as of July 30, 1998, between WPS RESOURCES
CORPORATION, a Wisconsin corporation (the "Company"), and STATE STREET BANK
AND TRUST COMPANY, a Massachusetts trust company, not in its individual
capacity but solely as trustee (the "Trustee"):
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance, from time to time, of its unsecured
debentures, notes or other evidences of indebtedness (the "Debt Securities"),
to be issued in one or more series as provided in this Indenture.
This Indenture is subject to the provisions of the Trust Indenture Act of
1939, as amended, that are required to be part of this Indenture and shall, to
the extent applicable, be governed by such provisions. All things necessary
to make this Indenture a valid agreement of the Company, in accordance with
its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Debt Securities by the holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all holders of the Debt Securities
or of any series thereof, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions of Terms.
--------------------
The terms defined in this Section (except as otherwise expressly
provided in this Indenture or unless the context otherwise requires) for all
purposes of this Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Section and shall include the
plural as well as the singular. All other terms used in this Indenture that
are defined in the Trust Indenture Act of 1939, as amended, or by reference
therein in the Securities Act of 1933, as amended (except as otherwise
expressly provided in this Indenture or unless the context otherwise
requires), shall have the meanings assigned to such terms in the Trust
Indenture Act and in the Securities Act as in force at the date of the
execution of this instrument.
"Administrative Trustees" shall have the meaning set forth in the
-----------------------
Declaration.
"Affiliate" means, with respect to a specified Person, (a) any
---------
Person directly or indirectly owning, controlling or holding with power to
vote 10% or more of the outstanding voting securities or other ownership
interests of the specified Person, (b) any Person 10% or more of whose
outstanding voting securities or other ownership interests are directly or
indirectly owned, controlled or held with power to vote by the specified
Person, (c) any Person directly or indirectly controlling, controlled by or
under common control with the specified Person, (d) a partnership in which the
specified Person is a general partner, (e) any officer or director of the
specified Person and (f) if the specified Person is an individual, any entity
of which the specified Person is an officer, director or general partner.
"Authenticating Agent" means an authenticating agent with respect to
--------------------
all or any of the
1
<PAGE>
series of Debt Securities appointed with respect to all or such series of the
Debt Securities by the Trustee pursuant to Section 2.10.
"Bankruptcy Law" means Title 11, United States Code, or any similar
--------------
federal or state law for the relief of debtors.
"Board of Directors" means the board of directors of the Company, or
------------------
any duly authorized committee of such board.
"Board Resolution" means a copy of a resolution certified by the
----------------
Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors or by a duly constituted committee thereof and to be
in full force and effect on the date of such certification.
"Business Day" means, with respect to any series of Debt Securities,
------------
any day other than a day on which federal or state banking institutions in
New York, New York or Boston, Massachusetts are authorized or required by law,
executive order or regulation to close.
"Certificate" means a certificate signed by the principal executive
-----------
officer, the principal financial officer, the treasurer or the principal
accounting officer of the Company. The Certificate need not comply with the
provisions of Section 14.7.
"Commission" means the United States Securities and Exchange
----------
Commission, or any successor agency thereto.
"Company" means WPS Resources Corporation, a corporation duly
-------
organized and existing under the laws of the State of Wisconsin, and, subject
to the provisions of Article X, shall also include its successors and assigns.
"Corporate Trust Office" means the office of the Trustee at which,
----------------------
at any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at Two International
Place, 4th Floor, P.O. Box 778, Boston, Massachusetts 02102-0778, Attention:
Corporate Trust Department.
"Custodian" means any receiver, trustee, assignee, liquidator, or
---------
similar official under any Bankruptcy Law.
"Debt Securities" means the Debt Securities authenticated and
---------------
delivered under this Indenture.
"Declaration" means, with respect to a WPSR Trust, the amended and
-----------
restated declaration of trust of such WPSR Trust or any other governing
instrument of such WPSR Trust.
"Default" means any event, act or condition that with notice or
-------
lapse of time, or both, would constitute an Event of Default.
"Defaulted Interest" has the meaning specified in Section 2.3.
------------------
2
<PAGE>
"Depositary" means, with respect to Debt Securities of any series
----------
for which the Company shall determine that such Debt Securities will be issued
as a Global Security, The Depository Trust Company, New York, New York,
another clearing agency, or any successor registered as a clearing agency
under the Exchange Act or other applicable statute or regulation, which, in
each case, shall be designated by the Company pursuant to either Section 2.1
or 2.11.
"Event of Default" means, with respect to Debt Securities of a
----------------
particular series, any event specified in Section 6.1, continued for the
period of time, if any, therein designated.
"Exchange Act" means the Securities Exchange Act of 1934, as
------------
amended.
"Global Security" means, with respect to any series of Debt
---------------
Securities, a Debt Security executed by the Company and delivered by the
Trustee to the Depositary or pursuant to the Depositary's instruction, all in
accordance with this Indenture, which shall be registered in the name of the
Depositary or its nominee.
"Governmental Obligations" means securities that are (i) direct
------------------------
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America, the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America that, in either case,
are not callable or redeemable at the option of the issuer thereof, and shall
also include a depositary receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act) as custodian with respect to any such
Governmental Obligation or a specific payment of principal of or interest on
any such Governmental Obligation held by such custodian for the account of
the holder of such depositary receipt; provided, however, that (except as
-------- -------
required by law) such custodian is not authorized to make any deduction from
the amount payable to the holder of such depositary receipt from any amount
received by the custodian in respect of the Governmental Obligation or the
specific payment of principal of or interest on the Governmental Obligation
evidenced by such depositary receipt.
"Guaranties" mean the Trust Preferred Securities Guaranty and the
----------
Trust Common Securities Guaranty.
"Herein", "hereof" and "hereunder", and other words of similar
------ ------ ---------
import, refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
"Indenture" means this instrument as originally executed or as it
---------
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into in accordance with the terms hereof and shall
include the form and terms of particular series of Debt Securities established
as contemplated hereunder.
"Interest Payment Date", when used with respect to any installment
---------------------
of interest on a Debt Security of a particular series, means the date
specified in such Debt Security or in a Board Resolution and Officers'
Certificate or an indenture supplemental hereto with respect to such series as
the fixed date on which an installment of interest with respect to Debt
Securities of that series is due and payable.
"Officers' Certificate" means a certificate signed by the Chairman,
---------------------
President or any Vice President and by the Treasurer or an Assistant Treasurer
or the Controller or an Assistant Controller or the
3
<PAGE>
Secretary or an Assistant Secretary of the Company that is delivered to the
Trustee in accordance with the terms hereof. Each such certificate shall
include the statements provided for in Section 14.7, if and to the extent
required by the provisions of such Section.
"Opinion of Counsel" means an opinion in writing of legal counsel,
------------------
who may be an employee of or counsel for the Company, that is delivered to the
Trustee in accordance with the terms hereof. Each such opinion shall include
the statements provided for in Section 14.7, if and to the extent required by
the provisions of such Section.
"Outstanding", when used with reference to Debt Securities of any
-----------
series, means, subject to the provisions of Section 8.4, as of any particular
time, all Debt Securities of that series theretofore authenticated and
delivered by the Trustee under this Indenture, except (a) Debt Securities
theretofore canceled by the Trustee or any paying agent, or delivered to the
Trustee or any paying agent for cancellation or that have previously been
canceled; (b) Debt Securities or portions thereof for the payment or
redemption of which moneys or Governmental Obligations in the necessary amount
shall have been deposited in trust with the Trustee or with any paying agent
(other than the Company) or shall have been set aside and segregated in trust
by the Company (if the Company shall act as its own paying agent); provided,
--------
however, that if such Debt Securities or portions of such Debt Securities are
- -------
to be redeemed prior to the maturity thereof, notice of such redemption shall
have been given as provided in Section 3.2, or provision satisfactory to the
Trustee shall have been made for giving such notice; (c) Debt Securities in
lieu of or in substitution for which other Debt Securities shall have been
authenticated and delivered pursuant to the terms of Section 2.7; and (d) Debt
Securities, except to the extent provided in Sections 11.1 and 11.2, with
respect to which the Company has effected defeasance and/or covenant
defeasance as provided in Article XI.
"Person" means any individual, corporation, partnership, limited
------
liability company, joint venture, joint-stock company, unincorporated
organization or government or any agency or political subdivision thereof.
"Predecessor Security" of any particular Debt Security means every
--------------------
previous Debt Security evidencing all or a portion of the same debt and
guaranty as that evidenced by such particular Debt Security; and, for the
purposes of this definition, any Debt Security authenticated and delivered
under Section 2.7 in lieu of a lost, destroyed or stolen Debt Security shall
be deemed to evidence the same debt as the lost, destroyed or stolen Debt
Security.
"Property Trustee" has the meaning set forth in the Declaration of
----------------
the applicable WPSR Trust.
"Responsible Officer," when used with respect to the Trustee, means
-------------------
the chairman or any vice-chairman of the board of directors, the 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 other officer of the Trustee customarily performing
functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with the particular
subject.
"Securities Act" means the Securities Act of 1933, as amended from
--------------
time to time, or any successor legislation.
4
<PAGE>
"Securityholder", "Holder of Debt Securities", "Registered Holder",
-------------- ------------------------- -----------------
or other similar term, means the Person or Persons in whose name or names a
particular Debt Security shall be registered on the books of the Company kept
for that purpose in accordance with the terms of this Indenture.
"Security Register" and "Security Registrar" have the respective
----------------- ------------------
meanings set forth in Section 2.5.
"Senior Indebtedness" means, with respect to the Company, (i) the
-------------------
principal, premium, if any, and interest in respect of (A) indebtedness of the
Company for money borrowed and (B) indebtedness evidenced by securities,
debentures, bonds 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 the Company under any
title retention agreement (but excluding trade accounts payable arising in the
ordinary course of business); (iv) all obligations of the Company for the
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 in each
case for (1) any such indebtedness that is by its terms subordinated to or
pari passu with the Debt Securities, as the case may be, and (2) any
indebtedness from the Company to any Affiliate of the Company.
"Subsidiary" means, with respect to any Person, (i) any corporation
----------
at least a majority of whose outstanding Voting Stock shall at the time be
owned, directly or indirectly, by such Person or by one or more of its
Subsidiaries or by such Person and one or more of its Subsidiaries, (ii) any
general partnership, joint venture or similar entity, at least a majority of
whose outstanding partnership or similar interests shall at the time be owned
by such Person, or by one or more of its Subsidiaries, or by such Person and
one or more of its Subsidiaries and (iii) any limited partnership of which
such Person or any of its Subsidiaries is a general partner.
"Trustee" means State Street Bank and Trust Company and, subject to
-------
the provisions of Article VII, shall also include its successors and assigns,
and, if at any time there is more than one Person acting in such capacity
hereunder, "Trustee" shall mean each such Person. The term "Trustee," as used
with respect to a particular series of Debt Securities, shall mean the trustee
with respect to that series.
"Trust Common Securities" means undivided beneficial interests in
-----------------------
the assets of a WPSR Trust which rank pari passu with Trust Preferred
Securities issued by such WPSR Trust; provided, however, that upon the
-------- -------
occurrence of an Event of Default, the rights of holders of Trust Common
Securities to payment in respect of distributions and payments upon
liquidation, redemption and maturity are subordinated to the rights of holders
of Trust Preferred Securities.
"Trust Common Securities Guaranty" means any guaranty that the
--------------------------------
Company may enter into with State Street Bank and Trust Company or any other
Person or Persons that operates directly or indirectly for the benefit of
holders of Trust Common Securities of a WPSR Trust.
"Trust Indenture Act" means the Trust Indenture Act of 1939, subject
-------------------
to the provisions of
5
<PAGE>
Sections 9.1, 9.2 and 10.1, as in effect at the date of execution of this
instrument.
"Trust Preferred Securities" means undivided beneficial interests in
--------------------------
the assets of a WPSR Trust which rank pari passu with Trust Common Securities
issued by such WPSR Trust; provided, however, that upon the occurrence of an
-------- -------
Event of Default, the rights of holders of Trust Common Securities to payment
in respect of distributions and payments upon liquidation, redemption and
otherwise are subordinated to the rights of holders of Trust Preferred
Securities.
"Trust Preferred Securities Guaranty" means any guaranty that the
-----------------------------------
Company may enter into with State Street Bank and Trust Company or any other
Person or Persons that operates directly or indirectly for the benefit of
holders of Trust Preferred Securities of a WPSR Trust.
"Trust Securities" means Trust Common Securities and Trust Preferred
----------------
Securities.
"Voting Stock", as applied to stock of any Person, means shares,
------------
interests, participations or other equivalents in the equity interest (however
designated) in such Person having ordinary voting power for the election of a
majority of the directors (or the equivalent) of such Person, other than
shares, interests, participations or other equivalents having such power only
by reason of the occurrence of a contingency.
"WPSR Trust" means WPSR Capital Trust I, a Delaware business trust,
----------
or any similar trust created for the purpose of issuing preferred securities
in connection with the issuance of Debt Securities under this Indenture.
ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF DEBT SECURITIES
SECTION 2.1. Designation and Terms of Debt Securities.
----------------------------------------
The aggregate principal amount of Debt Securities that may be
authenticated and delivered under this Indenture is unlimited. The Debt
Securities may be issued in one or more series up to the aggregate principal
amount of Debt Securities of that series from time to time authorized by or
pursuant to a Board Resolution of the Company, or pursuant to one or more
indentures supplemental hereto. Prior to the initial issuance of Debt
Securities of any series, there shall be established in or pursuant to a Board
Resolution of the Company, and set forth in an Officers' Certificate, or
established in one or more indentures supplemental hereto:
(a) the title of the series of Debt Security (which shall
distinguish the Debt Securities of that series from all other series of Debt
Securities);
(b) any limit upon the aggregate principal amount of the Debt
Securities of that series that may be authenticated and delivered under this
Indenture (except for Debt Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Debt
Securities of that series);
(c) the date or dates on which the principal of the Debt Securities
of that series is payable;
6
<PAGE>
(d) the rate or rates at which the Debt Securities of that series
shall bear interest or the manner of calculation of such rate or rates, if
any;
(e) the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest will be payable or the manner of
determination of such Interest Payment Dates and the record date for the
determination of holders to whom interest is payable on any such Interest
Payment Dates;
(f) the right, if any, to defer the interest payment periods and
the duration of such extension;
(g) the period or periods within which, the price or prices at
which, and the terms and conditions upon which, Debt Securities of that series
may be redeemed, in whole or in part, at the option of the Company;
(h) the obligation, if any, of the Company to redeem or purchase
Debt Securities of that series pursuant to any sinking fund or analogous
provisions (including payments made in cash in participation of future sinking
fund obligations) or at the option of a holder thereof and the period or
periods within which, the price or prices at which, and the terms and
conditions upon which, Debt Securities of that series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(i) the form of the Debt Securities of that series, including the
form of the Certificate of Authentication for such series;
(j) if other than denominations of [one thousand U.S. dollars
($1,000)] or any integral multiple thereof, the denominations in which the
Debt Securities of that series shall be issuable;
(k) whether the Debt Securities are issuable as a Global Security
and, in such case, the identity of the Depositary for such series; and
(l) any and all other terms with respect to such series (which
terms shall not be inconsistent with the terms of this Indenture), including
any terms which may be required by or advisable under United States laws or
regulations or advisable in connection with the marketing of Debt Securities
of that series.
All Debt Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to any such Board Resolution or in any indentures supplemental
hereto.
If any of the terms of a series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of such series.
7
<PAGE>
SECTION 2.2. Form of Debt Securities and Trustee's Certificate.
-------------------------------------------------
The Debt Securities of any series and the Trustee's certificate of
authentication to be borne by such Debt Securities shall be substantially of
the tenor and purport as set forth in one or more indentures supplemental
hereto or as provided in a Board Resolution and as set forth in an Officers'
Certificate, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the Company may deem appropriate and as
are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which Debt
Securities of that series may be listed, or to conform to usage.
SECTION 2.3. Denominations; Provisions for Payment.
-------------------------------------
The Debt Securities shall be issuable as registered Debt Securities
and in the denominations of one thousand U.S. dollars ($1,000) or any integral
multiple thereof, subject to Section 2.1(j). The Debt Securities of a
particular series shall bear interest payable on the Interest Payment Dates
and at the rate specified with respect to that series. The principal of and
the interest on the Debt Securities of any series, as well as any premium
thereon in case of redemption thereof prior to maturity, shall be payable in
the coin or currency of the United States of America that at the time of such
payment is legal tender for public and private debt, at the office or agency
of the Company maintained for that purpose in the Borough of Manhattan, the
City and State of New York. Notwithstanding the foregoing, so long as the
holder of any Debt Securities is the Property Trustee, the payment of the
principal and interest, including premium if any, on the Debt Securities held
by the Property Trustee shall be made at such place and to such account as may
be designated by the Property Trustee. Each Debt Security shall be dated the
date of its authentication. Interest on the Debt Securities shall be computed
on the basis of a 360-day year composed of twelve 30-day months.
The interest installment on any Debt Security that is payable, and
is punctually paid or duly provided for, on any Interest Payment Date for Debt
Securities of that series shall be paid to the Person in whose name said Debt
Security (or one or more Predecessor Debt Securities) is registered at
the close of business on the regular record date for such interest
installment. In the event that any Debt Security of a particular series or
portion thereof is called for redemption and the redemption date is
subsequent to a regular record date with respect to any Interest Payment Date
and prior to such Interest Payment Date, interest on such Debt Security will
be paid upon presentation and surrender of such Debt Security as provided in
Section 3.3.
Any interest on any Debt Security that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date for Debt
Securities of that series (herein called "Defaulted Interest") shall forthwith
cease to be payable to the registered holder on the relevant regular record
date by virtue of having been such holder; and such Defaulted Interest shall
be paid by the Company, at its election, as provided in clause (1) or clause
(2) below:
(1) The Company may make payment of any Defaulted Interest on Debt
Securities to the Persons in whose names such Debt Securities (or their
respective Predecessor Debt Securities) are registered at the close of
business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner: the Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Debt Security and the
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date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a special record date for the payment of such Defaulted
Interest which shall not be more than 15 nor less than 10 days prior to
the date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such special record date
and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the special
record date therefor to be mailed, first class postage prepaid, to each
Securityholder at his or her address as it appears in the Security
Register not less than 10 days prior to such special record date.
Notice of the proposed payment of such Defaulted Interest and
the special record date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names such Debt
Securities (or their respective Predecessor Debt Securities) are
registered on such special record date and shall be no longer payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on any
Debt Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Debt Securities
may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustees of the
proposed payment pursuant to this clause, such manner of payment shall
be deemed practicable by the Trustee.
Unless otherwise provided in a Board Resolution and an Officers'
Certificate or in one or more indentures supplemental hereto establishing the
terms of any series of Debt Securities pursuant to Section 2.1 hereof, the
term "regular record date" as used in this Section with respect to a series of
Debt Securities with respect to any Interest Payment Date for such series
shall mean either (a) the fifteenth day of the month immediately preceding the
month in which an Interest Payment Date established for such series pursuant
to Section 2.1 shall occur, if such Interest Payment Date is the first day of
a month, (b) the fifteenth day of the month in which an Interest Payment Date
established for such series pursuant to Section 2.1 shall occur, if such
Interest Payment Date is the last day of such month, or (c) the last day of
the month immediately preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.1 hereof shall occur, if
such Interest Payment Date is the fifteenth day of a month, whether or not
such date is a Business Day.
Subject to the foregoing provisions of this Section, each Debt
Security of a series delivered under this Indenture upon transfer of or in
exchange for or in lieu of any other Debt Security of such series shall carry
the rights to interest accrued and unpaid, and to accrue, that were carried by
such other Debt Security.
SECTION 2.4. Execution and Authentication.
----------------------------
The Debt Securities shall be signed on behalf of the Company by
its Chairman, President or one of its Vice Presidents, under its corporate
seal attested by its Secretary or one of its Assistant Secretaries. Signatures
may be in the form of a manual or facsimile signature. The Company may use
the facsimile signature of any Person who shall have been Chairman, President
or Vice President thereof, or of any Person who shall have been a Secretary or
Assistant Secretary thereof, notwithstanding the fact that at
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the time the Debt Securities shall be authenticated and delivered or disposed
of such Person shall have ceased to be the Chairman, President or a Vice
President, or the Secretary or an Assistant Secretary, of the Company. The
seal of the Company may be in the form of a facsimile of such seal and may be
impressed, affixed, imprinted or otherwise reproduced on the Debt Securities.
The Debt Securities may contain such notations, legends or endorsements
required by law, stock exchange rule or usage. Each Debt Security shall be
dated the date of its authentication by the Trustee.
A Debt Security shall not be valid until authenticated manually by
an authorized signatory of the Trustee, or by an Authenticating Agent. Such
signature shall be conclusive evidence that the Debt Security so authenticated
has been duly authenticated and delivered hereunder and that the holder is
entitled to the benefits of this Indenture.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Debt Securities of any series
executed by the Company to the Trustee for authentication, together with a
written order of the Company for the authentication and delivery of such Debt
Securities, signed by its Chairman, President or any Vice President and its
Treasurer or any Assistant Treasurer, and the Trustee in accordance with such
written order shall authenticate and deliver such Debt Securities.
In authenticating such Debt Securities and accepting the
additional responsibilities under this Indenture in relation to such Debt
Securities, the Trustee shall be entitled to receive, and (subject to Section
7.1) shall be fully protected in relying upon, an Opinion of Counsel stating
that the form and terms thereof have been established in conformity with the
provisions of this Indenture.
The Trustee shall not be required to authenticate such Debt
Securities if the issue of such Debt Securities pursuant to this Indenture
will affect the Trustee's own rights, duties or immunities under the Debt
Securities and this Indenture or otherwise in a manner that is not reasonably
acceptable to the Trustee.
SECTION 2.5. Registration of Transfer and Exchange.
-------------------------------------
(a) Debt Securities of any series may be exchanged upon
presentation thereof at the Corporate Trust Office or such other location
designated by the Company pursuant to Section 4.2 for other Debt Securities of
such series of authorized denominations, and for a like aggregate principal
amount, upon payment of a sum sufficient to cover any tax or other
governmental charge in relation thereto, all as provided in this Section. In
respect of any Debt Securities so surrendered for exchange, the Company shall
execute, the Trustee shall authenticate and such office or agency shall
deliver in exchange therefor the Debt Security or Debt Securities of the same
series that the Securityholder making the exchange shall be entitled to
receive, bearing numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at the Corporate
Trust Office or such other location designated by the Company pursuant to
Section 4.2 a register or registers (herein referred to as the "Security
Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall register the Debt Securities and the transfers of
Debt Securities as in this Article provided and which at all reasonable times
shall be open for inspection by the Trustee. The registrar for the purpose of
registering Debt Securities and the transfer of Debt Securities as herein
provided shall be appointed as authorized by a Board Resolution (the "Security
Registrar").
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Upon surrender for transfer of any Debt Security at the Corporate
Trust Office or such other location designated by the Company pursuant to
Section 4.2, the Company shall execute, the Trustee shall authenticate, and
such office or agency shall deliver in the name of the transferee or
transferees a new Debt Security or Debt Securities of the same series as the
Debt Security presented for a like aggregate principal amount.
All Debt Securities presented or surrendered for exchange or
registration of transfer, as provided in this Section, shall be accompanied
(if so required by the Company or the Security Registrar) by a written
instrument or instruments of transfer, in form satisfactory to the Company or
the Security Registrar, duly executed by the registered holder or by such
holder's duly authorized attorney in writing.
(c) No service charge shall be made for any exchange or
registration of transfer of Debt Securities, or issue of new Debt Securities
in case of partial redemption of any series, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge in
relation thereto, other than exchanges pursuant to Section 2.6, Section 3.3(b)
and Section 9.4 not involving any transfer.
(d) The Company shall not be required (i) to issue, exchange or
register the transfer of any Debt Securities during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of less than all the Outstanding Debt Securities of the same series
and ending at the close of business on the day of such mailing, nor (ii) to
register the transfer of or exchange any Debt Securities of any series or
portions thereof called for redemption. The provisions of this Section 2.5
are, with respect to any Global Security, subject to Section 2.11 hereof.
SECTION 2.6. Temporary Securities.
--------------------
Pending the preparation of definitive Debt Securities of any
series, the Company may execute, and the Trustee shall authenticate and
deliver, temporary Debt Securities (printed, lithographed or typewritten) of
any authorized denomination. Such temporary Debt Securities shall be
substantially in the form of the definitive Debt Securities in lieu of which
they are issued, but with such omissions, insertions and variations as may be
appropriate for temporary Debt Securities, all as may be determined by the
Company. Every temporary Debt Security of any series shall be executed by the
Company and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive Debt
Securities of such series. Without unnecessary delay the Company will execute
and furnish definitive Debt Securities of such series and thereupon any or all
temporary Debt Securities of such series may be surrendered in exchange
therefor (without charge to the holders), at the Corporate Trust Office or
such location designated by the Company pursuant to Section 4.2, and the
Trustee shall authenticate, and such Corporate Trust Office or location shall
deliver, in exchange for such temporary Debt Securities an equal aggregate
principal amount of definitive Debt Securities of such series, unless the
Company advises the Trustee to the effect that definitive Debt Securities need
not be executed and furnished until further notice from the Company. Until so
exchanged, the temporary Debt Securities of such series shall be entitled to
the same benefits under this Indenture as definitive Debt Securities of such
series authenticated and delivered hereunder.
SECTION 2.7. Mutilated, Destroyed, Lost or Stolen Debt Securities.
----------------------------------------------------
In case any temporary or definitive Debt Security shall become
mutilated or be destroyed,
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lost or stolen, the Company (subject to the next succeeding sentence) shall
execute, and upon the Company's request, the Trustee (subject as aforesaid)
shall authenticate and deliver, a new Debt Security of the same series,
bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated Debt Security, or in lieu of and in
substitution for the Debt Security so destroyed, lost or stolen. In every
case the applicant for a substituted Debt Security shall furnish to the
Company and the Trustee such security or indemnity as may be required by them
to save each of them harmless, and, in every case of destruction, loss or
theft, the applicant shall also furnish to the Company and the Trustee
evidence to their satisfaction of the destruction, loss or theft of the
applicant's Debt Security and of the ownership thereof. The Trustee may
authenticate any such substituted Debt Security and deliver the same upon the
written request or authorization of any officer of the Company. Upon the
issuance of any substituted Debt Security, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith. In case any Debt Security that
has matured or is about to mature shall become mutilated or be destroyed, lost
or stolen, the Company may, instead of issuing a substitute Debt Security, pay
or authorize the payment of the same (without surrender thereof except in the
case of a mutilated Debt Security) if the applicant for such payment shall
furnish to the Company and the Trustee such security or indemnity as they may
require to save them harmless, and, in case of destruction, loss or theft,
evidence to the satisfaction of the Company and the Trustee of the
destruction, loss or theft of such Debt Security and of the ownership thereof.
Every replacement Debt Security issued pursuant to the provisions
of this Section shall constitute an additional contractual obligation of the
Company, whether or not the mutilated, destroyed, lost or stolen Debt Security
shall be found at any time, or be enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately with any and
all other Debt Securities of the same series duly issued hereunder. All Debt
Securities shall be held and owned upon the express condition that the
foregoing provisions are exclusive with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Debt Securities, and shall preclude
(to the extent lawful) any and all other rights or remedies, notwithstanding
any law or statute existing or hereafter enacted to the contrary with respect
to the replacement or payment of negotiable instruments or other securities
without their surrender.
SECTION 2.8. Cancellation.
------------
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All Debt Securities surrendered for the purpose of payment,
redemption, exchange or registration of transfer shall, if surrendered to the
Company or any paying agent, be delivered to the Trustee for cancellation, or,
if surrendered to the Trustee, shall be canceled by it, and no Debt Securities
shall be issued in lieu thereof except as expressly required or permitted by
any of the provisions of this Indenture. On request of the Company at the time
of such surrender, the Trustee shall deliver to the Company canceled Debt
Securities held by the Trustee. In the absence of such request the Trustee
may dispose of canceled Debt Securities in accordance with its standard
procedures and deliver a certificate of disposition to the Company. If the
Company shall otherwise acquire any of the Debt Securities, however, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Debt Securities unless and until the same are
delivered to the Trustee for cancellation.
SECTION 2.9. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Debt Securities, express or
implied, shall give or be construed to give to any Person, other than the
parties hereto and the holders of the Debt Securities (and, with respect to
the provisions of Article XIII, the holders of Senior Indebtedness) any legal
or equitable right, remedy or claim under or in respect of this Indenture, or
under any covenant, condition or provision herein contained; all such
covenants, conditions and provisions being for the sole benefit of the parties
hereto and of the holders of the Debt Securities (and, with respect to the
provisions of Article XIII, the holders of Senior Indebtedness).
SECTION 2.10. Authenticating Agent.
--------------------
So long as any of the Debt Securities of any series remain
Outstanding, there may be an Authenticating Agent for any or all such series
of Debt Securities which the Trustee shall have the right to appoint. Said
Authenticating Agent shall be authorized to act on behalf of the Trustee to
authenticate Debt Securities of such series issued upon exchange, transfer or
partial redemption thereof, and Debt Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. All references
in this Indenture to the authentication of Debt Securities by the Trustee
shall be deemed to include authentication by an Authenticating Agent for such
series. Each Authenticating Agent shall be acceptable to the Company and shall
be a corporation that has a combined capital and surplus, as most recently
reported or determined by it, sufficient under the laws of any jurisdiction
under which it is organized or in which it is doing business to conduct a
trust business, and that is otherwise authorized under such laws to conduct
such business and is subject to supervision or examination by federal or state
authorities. If at any time any Authenticating Agent shall cease to be
eligible in accordance with these provisions, it shall resign immediately.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at
any time (and upon request by the Company shall) terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent, the Trustee may appoint
an eligible successor Authenticating Agent acceptable to the Company. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder as if originally named as an Authenticating Agent pursuant hereto.
SECTION 2.11. Global Securities.
-----------------
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(a) If the Company shall establish pursuant to Section 2.1 that
the Debt Securities of a particular series are to be issued as a Global
Security or Global Securities, then the Company shall execute and the Trustee
shall, in accordance with Section 2.4, authenticate and deliver, a Global
Security or Global Securities that (i) shall represent, and shall be
denominated in an amount equal to the aggregate principal amount of, all of
the Outstanding Debt Securities of such series, (ii) shall be registered in
the name of the Depositary or its nominee, (iii) shall be delivered by the
Trustee to the Depositary or pursuant to the Depositary's instruction, and
(iv) shall bear a legend substantially to the following effect: "Except as
otherwise provided in Section 2.11 of the Indenture, this Debt Security may be
transferred, in whole but not in part, only to another nominee of the
Depositary or to a successor Depositary or to a nominee of such successor
Depositary."
(b) Except as provided in clause (c), notwithstanding the
provisions of Section 2.5, the Global Security or Global Securities of a
series may be transferred, in whole but not in part and in the manner provided
in Section 2.5, only to another nominee of the Depositary for such series, or
to a successor Depositary for such series selected or approved by the Company
or to a nominee of such successor Depositary.
(c) If at any time the Depositary for a series of the Debt
Securities notifies the Company that it is unwilling or unable to continue as
Depositary for such series or if at any time the Depositary for such series
shall no longer be registered or in good standing under the Exchange Act, or
other applicable statute or regulation, at a time when the Depositary is
required to be so registered to act as such Depositary and a successor
Depositary 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, or if there has occurred an Event of Default with respect to
such series of the Debt Securities, this Section 2.11 shall no longer be
applicable to the Debt Securities of such series and the Company will execute,
and subject to Section 2.5, the Trustee will authenticate and deliver the Debt
Securities of such series in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security or Global Securities of such series in
exchange for such Global Security or Global Securities. In addition, the
Company may at any time determine that the Debt Securities of any series shall
no longer be represented by a Global Security or Global Securities and that
the provisions of this Section 2.11 shall no longer apply to the Debt
Securities of such series. In such event, the Company will execute and,
subject to Section 2.5, the Trustee, upon receipt of an Officers' Certificate
evidencing such determination by the Company, will authenticate and deliver
the Debt Securities of such series in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount
equal to the principal amount of the Global Security or Global Securities of
such series in exchange for such Global Security or Global Securities. Upon
the exchange of the Global Security or Global Securities for such Debt
Securities in definitie registered form without coupons, in authorized
denominations, the Global Security or Global Securities shall be canceled by
the Trustee. Such Debt Securities in definitive registered form issued in
exchange for the Global Security or Global Securities pursuant to this Section
2.11(c) shall be registered in such names and in such authorized denominations
as the Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Debt Securities to the Depositary for delivery to the Persons in
whose names such Debt Securities are so registered.
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ARTICLE III
REDEMPTION OF DEBT SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.1. Redemption.
----------
The Company may redeem the Debt Securities of any series issued
hereunder on and after the dates and in accordance with the terms established
for such series pursuant to Section 2.1.
SECTION 3.2. Notice of Redemption.
--------------------
(a) In case the Company shall desire to exercise such right to
redeem all or, as the case may be, a portion of the Debt Securities of any
series in accordance with the right reserved so to do, the Company shall, or
shall cause the Trustee to, give notice of such redemption to holders of the
Debt Securities of such series to be redeemed by mailing, first class postage
prepaid, a notice of such redemption not less than 30 days and not more than
60 days before the date fixed for redemption of that series to such holders at
their last addresses as they shall appear upon the Security Register unless a
shorter period is specified in the Debt Securities to be redeemed. Any notice
that is mailed in the manner herein provided shall be conclusively presumed to
have been duly given, whether or not the registered holder receives the
notice. In any case, failure duly to give such notice to the holder of any
Debt Security of any series designated for redemption in whole or in part, or
any defect in the notice, shall not affect the validity of the proceedings for
the redemption of any other Debt Securities of such series or any other
series. In the case of any redemption of Debt Securities prior to the
expiration of any restriction on such redemption provided in the terms of such
Debt Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with any such
restriction.
Each such notice of redemption shall specify the date fixed for
redemption and the redemption price at which Debt Securities of that series
are to be redeemed, and shall state that payment of the redemption price of
such Debt Securities to be redeemed will be made at the Corporate Trust
Office, upon presentation and surrender of such Debt Securities, that interest
accrued to the date fixed for redemption will be paid as specified in said
notice, that from and after said date interest will cease to accrue and that
the redemption is for a sinking fund, if such is the case. If less than all
the Debt Securities of a series are to be redeemed in whole or in part, the
notice to the holders of Debt Securities of that series to be redeemed shall
specify the particular Debt Securities to be so redeemed. In case any Debt
Security is to be redeemed in part only, the notice that relates to such Debt
Security shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the redemption date, upon surrender
of such Debt Security, a new Debt Security or Debt Securities of such series
in principal amount equal to the unredeemed portion thereof will be issued.
(b) If less than all the Debt Securities of a series are to be
redeemed, the Company shall give the Trustee at least 45 days' notice in
advance of the date fixed for redemption as to the aggregate principal amount
of Debt Securities of the series to be redeemed, and thereupon the Trustee
shall select, by lot or in such other manner as it shall deem appropriate and
fair in its discretion and that may provide for the selection of a portion or
portions (equal to one thousand U.S. dollars ($1,000) or the minimum
denomination in which such Debt Securities are issuable, if other than $1,000,
or any integral multiple of $1,000 or such minimum denomination, as the case
may be) of the principal amount of such Debt Securities of a denomination
larger than $1,000 or such other minimum denomination, the Debt Securities to
be redeemed and shall thereafter promptly notify the Company in writing of the
numbers of the Debt Securities
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to be redeemed, in whole or in part.
The Company may, if and whenever it shall so elect, by delivery of
instructions signed on its behalf by its Chairman, President or any Vice
President, instruct the Trustee or any paying agent to call all or any part of
the Debt Securities of a particular series for redemption and to give notice
of redemption in the manner set forth in this Section, such notice to be in
the name of the Company or its own name as the Trustee or such paying agent
may deem advisable. In any case in which notice of redemption is to be given
by the Trustee or any such paying agent, the Company shall deliver or cause to
be delivered to, or permit to remain with, the Trustee or such paying agent,
as the case may be, such Security Register, transfer books or other records,
or suitable copies or extracts therefrom, sufficient to enable the Trustee or
such paying agent to give any notice by mail that may be required under the
provisions of this Section.
SECTION 3.3. Payment Upon Redemption.
-----------------------
(a) If the giving of notice of redemption shall have been
completed as above provided, the Debt Securities or portions of Debt
Securities of the series to be redeemed specified in such notice shall become
due and payable on the date and at the place stated in such notice at the
applicable redemption price, together with interest accrued to the date fixed
for redemption, and interest on such Debt Securities or portions of Debt
Securities shall cease to accrue on and after the date fixed for redemption,
unless the Company shall default in the payment of such redemption price and
accrued interest with respect to any such Debt Security or portion thereof.
On presentation and surrender of such Debt Securities on or after the date
fixed for redemption at the place of payment specified in the notice, said
Debt Securities shall be paid and redeemed at the applicable redemption price
for such series, together with interest accrued thereon to the date fixed for
redemption (but if the date fixed for redemption is an Interest Payment Date,
the interest installment payable on such date shall be payable to the
registered holder at the close of business on the applicable record date
pursuant to Section 2.3).
(b) Upon presentation of any Debt Security of such series that is
to be redeemed in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Debt Security is presented
shall deliver to the holder thereof, at the expense of the Company, a new Debt
Security or Debt Securities of the same series, of authorized denominations in
principal amount equal to the unredeemed portion of the Debt Security so
presented.
SECTION 3.4. Sinking Fund.
------------
The provisions of Sections 3.4, 3.5 and 3.6 shall be applicable to
any sinking fund for the retirement of Debt Securities of a series, except as
otherwise specified as contemplated by Section 2.1 for Debt Securities of such
series.
The minimum amount of any sinking fund payment provided for by the
terms of Debt Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount
provided for by the terms of Debt Securities of any series is herein referred
to as an "optional sinking fund payment." If provided for by the terms of
Debt Securities of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 3.5. Each sinking fund payment
shall be applied to the redemption of Debt Securities of any series as
provided for by the terms of Debt Securities of such series.
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SECTION 3.5. Satisfaction of Sinking Fund Payments with Debt Securities.
----------------------------------------------------------
The Company (i) may deliver Outstanding Debt Securities of a
series (other than any Debt Securities previously called for redemption) and
(ii) may apply as a credit Debt Securities of a series that have been redeemed
either at the election of the Company pursuant to the terms of such Debt
Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Debt Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to
the Debt Securities of such series required to be made pursuant to the terms
of such Debt Securities as provided for by the terms of such series, provided
that such Debt Securities have not been previously so credited. Such Debt
Securities shall be received and credited for such purpose by the Trustee at
the redemption price specified in such Debt Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment
shall be reduced accordingly.
SECTION 3.6. Redemption of Debt Securities for Sinking Fund.
----------------------------------------------
Not less than 45 days prior to each sinking fund payment date for
any series of Debt Securities, the Company will deliver to the Trustee (i) an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of the series, the portion
thereof, if any, that is to be satisfied by delivering and crediting Debt
Securities of that series pursuant to Section 3.5, and the basis for such
credit and (ii) any Debt Securities to be so delivered. Not less than 30 days
before each such sinking fund payment date, the Trustee shall select the Debt
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 3.2 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner provided
in Section 3.2. Such notice having been duly given, the redemption of such
Debt Securities shall be made upon the terms and in the manner stated in
Section 3.3.
ARTICLE IV
COVENANTS OF THE COMPANY
SECTION 4.1. Payment of Principal, Premium and Interest.
------------------------------------------
The Company will duly and punctually pay or cause to be paid the
principal of (and premium, if any) and interest on the Debt Securities of each
series at the time and place and in the manner provided herein and established
with respect to such Debt Securities.
SECTION 4.2. Maintenance of Office or Agency.
-------------------------------
So long as any series of the Debt Securities remain Outstanding,
the Company agrees to maintain an office or agency with respect to each such
series at such location or locations as may be designated as provided in this
Section 4.2, where (i) Debt Securities of that series may be presented for
payment, (ii) Debt Securities of that series may be presented as hereinabove
authorized for registration of transfer and exchange, and (iii) notices and
demands to or upon the Company in respect of the Debt Securities of that
series and this Indenture may be given or served, such designation to continue
with respect to such office or agency until the Company shall, by written
notice signed by its Chairman, President or a Vice President and delivered to
the trustee, designate some other office or agency for such purposes or any of
them. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, notices and demands may be made or
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served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, notices
and demands.
SECTION 4.3. Paying Agents.
-------------
(a) If the Company shall appoint one or more paying agents for
all or any series of the Debt Securities, other than the Trustee, the Company
will cause each such paying agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section:
(1) that it will hold all sums held by it as such agent for the
payment of the principal of (and premium, if any) or interest on the
Debt Securities of that series (whether such sums have been paid to it
by the Company or by any other obligor of such Debt Securities) in trust
for the benefit of the Persons entitled thereto;
(2) that it will give the Trustee notice of any failure by the
Company (or by any other obligor of such Debt Securities) to make any
payment of the principal of (and premium, if any) or interest on the
Debt Securities of that series when the same shall be due and payable;
(3) that it will, at any time during the continuance of any
failure referred to in the preceding paragraph (a)(2) above, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such paying agent; and
(4) that it will perform all other duties of paying agent as set
forth in this Indenture.
(b) If the Company shall act as its own paying agent with respect
to any series of the Debt Securities, it will on or before each due date of
the principal of (and premium, if any) or interest on Debt Securities of that
series, set aside, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay such principal (and premium, if any)
or interest so becoming due on Debt Securities of that series until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of such action, or any failure (by it or any
other obligor on such Debt Securities) to take such action. Whenever the
Company shall have one or more paying agents for any series of Debt
Securities, it will, prior to each due date of the principal of (and premium,
if any) or interest on any Debt Securities of that series, deposit with the
paying agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such
paying agent is the Trustee) the Company will promptly notify the Trustee of
this action or failure so to act.
(c) Notwithstanding anything in this Section to the contrary, (i)
the agreement to hold sums in trust as provided in this Section is subject to
the provisions of Section 11.5, and (ii) the Company may at any time, for the
purpose of obtaining the satisfaction and discharge of this Indenture or for
any other purpose, pay, or direct any paying agent to pay, to the Trustee all
sums held in trust by the Company or such paying agent, such sums to be held
by the Trustee upon the same terms and conditions as those upon which such
sums were held by the Company or such paying agent; and, upon such payment by
any paying agent to the Trustee, such paying agent shall be released from all
further liability with respect to such money.
18
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SECTION 4.4. Appointment to Fill Vacancy in Office of Trustee.
------------------------------------------------
The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 7.10, a
Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 4.5. Compliance with Consolidation Provisions.
----------------------------------------
The Company will not, while any of the Debt Securities remain
Outstanding, consolidate with, or merge into, any other company or merge any
other company into itself, or sell or convey all or substantially all of its
property to any other company unless the provisions of Article X are complied
with.
SECTION 4.6. Limitation on Dividends.
-----------------------
If Debt Securities are issued to a WPSR Trust or a trustee of such
trust in connection with the issuance of Trust Securities by such WPSR Trust
and (a) there shall have occurred any event that would constitute an Event of
Default, or (b) the Company shall be in default with respect to its payment of
any obligations under the Trust Preferred Securities Guaranty or Trust Common
Securities Guaranty relating to such Trust Securities, or (c) the Company
shall have given notice of its election to defer payments of interest on Debt
Securities by extending the interest payment period as provided in the Board
Resolution and Officers' Certificate or indenture supplemental hereto
establishing such series of Debt Securities, and such period, or any extension
thereof, shall be continuing, then (x) the Company shall not declare or pay
any dividend on, make any distribution with respect to, or redeem, purchase or
acquire, or make a liquidation payment with respect to, any of its capital
stock (other than (i) repurchases or acquisitions of the Company's common
shares as contemplated by any employment arrangement, benefit plan or other
similar contract with or for the benefit of employees, officers or directors
entered into in the ordinary course of business, (ii) repurchases of common
shares of the Company as contemplated by the Company Stock Investment Plan or
Company Deferred Compensation Plan as in effect immediately prior to the
occurrence of such Event of Default or the date upon which the Company gives
notice of its election to extend the interest payment period, as applicable,
(iii) as a result of an exchange or conversion of any class or series of the
Company's capital stock for the Company's common shares, provided that such
class or series of the Company's capital stock was outstanding prior to the
occurrence of such Event of Default or the date upon which the Company gives
notice of its election to extend the interest payment period, as applicable,
(iv) the purchase of fractional interests in shares of the Company's cpital
stock pursuant to the conversion or exchange provisions of such Company
capital stock or the security being converted or exchanged, provided that such
Company capital stock or security was outstanding prior to the occurrence of
such Event of Default or the date upon which the Company gives notice of its
election to extend the interest payment period, as applicable, or (v) the
payment of any stock dividend where the dividend is paid in the form of the
same stock as that on which the dividend is paid), (y) the Company shall not
directly or indirectly, and shall not allow any of its Subsidiaries to, make
any payment of interest, principal or premium, if any, on or repay, repurchase
or redeem any debt securities issued by the Company that rank pari passu with
or junior to the Debt Securities, and (z) the Company shall not make guaranty
payments with respect to the foregoing (other than pursuant to the Trust
Preferred Securities Guaranty).
SECTION 4.7. Covenants as to WPSR Trusts.
---------------------------
In the event Debt Securities are issued to a WPSR Trust in
connection with the issuance of
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Trust Securities by such WPSR Trust, for so long as such Trust Securities
remain outstanding, the Company will (i) maintain 100% ownership of the Trust
Common Securities of such WPSR Trust; provided, however, that any permitted
-------- -------
successor of the Company under this Indenture may succeed to the Company's
ownership of the Trust Common Securities, (ii) not cause, as sponsor of such
WPSR Trust, or permit, as holder of Trust Common Securities of such WPSR
Trust, the dissolution, winding-up or termination of such WPSR Trust, except
in connection with a distribution of Debt Securities as provided in the
Declaration and in connection with certain mergers, consolidations or
amalgamations permitted by the Declaration, and (iii) use its reasonable
efforts to cause such WPSR Trust (a) to remain a statutory business trust,
except in connection with a distribution of Debt Securities to holders of
Trust Securities upon dissolution of such WPSR Trust, the redemption of all of
the Trust Securities of such WPSR Trust or certain mergers, consolidations or
amalgamations, each as permitted by the Declaration of such WPSR Trust, and
(b) to otherwise continue to be classified for United States federal income
tax purposes as a grantor trust.
SECTION 4.8. Corporate Existence.
-------------------
The Company will, subject to the provisions of Article X, at all
times maintain its corporate existence and right to carry on business and will
duly procure all renewals and extensions thereof, and, to the extent necessary
or desirable in the operation of its business, will use its best efforts to
maintain, preserve and renew all of its rights, powers, privileges and
franchises.
SECTION 4.9. Notice of Default.
-----------------
The Company shall file with the Trustee written notice of any
Event of Default within 30 Business Days of its becoming aware of such Event
of Default.
ARTICLE V
SECURITYHOLDERS, LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 5.1. Company to Furnish Trustee Names and Addresses of
-------------------------------------------------
Securityholders.
---------------
The Company will furnish or cause to be furnished to the Trustee
(a) on each regular record date (as defined in Section 2.3) a list, in such
form as the Trustee may reasonably require, of the names and addresses of the
holders of each series of Debt Securities as of such regular record date,
provided, however, the Company shall not be obligated to furnish or cause such
- -------- -------
list to be furnished at any time that the list shall not differ in any respect
from the most recent list furnished to the Trustee by the Company and (b) at
such other times as the Trustee may request in writing within 30 days after
the receipt by the Company of any such request, a list of similar form and
content as of a date not more than 15 days prior to the time such list is
furnished; provided, however, that in either case, no such list need be
-------- -------
furnished for any series for which the Trustee shall be the Security
Registrar.
SECTION 5.2. Preservation Of Information; Communications With
------------------------------------------------
Securityholders.
---------------
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of the
holders of Debt Securities contained in the most recent list furnished to it
as provided in Section 5.1 and as to the names and addresses of holders of
Debt Securities received by the Trustee in its capacity as Security Registrar
(if acting in such capacity).
20
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(b) The Trustee may destroy any list furnished to it as provided
in Section 5.1 upon receipt of a new list so furnished.
(c) Securityholders may communicate as provided in Section 312(b)
of the Trust Indenture Act with other Securityholders with respect to their
rights under this Indenture or under the Debt Securities.
SECTION 5.3. Reports By the Company.
----------------------
(a) The Company covenants and agrees to file with the Trustee,
within 15 days after the Company is required to file the same with the
Commission, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) that the
Company may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not required to file
information, documents or reports pursuant to either of such sections, then to
file with the Trustee and the Commission, in accordance with the rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports that may be
required pursuant to Section 13 of the Exchange Act, in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and
the Commission, in accordance with the rules and regulations prescribed from
time to time by the Commission, such additional information, documents and
reports with respect to compliance by the Company with the conditions and
covenants provided for in this Indenture as may be required from time to time
by such rules and regulations.
(c) The Company covenants and agrees to transmit by mail, first
class postage prepaid, or reputable overnight delivery service that provides
for evidence of receipt, to the Securityholders, as their names and addresses
appear upon the Security Register, within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to subsections (a) and (b) of
this Section as may be required by rules and regulations prescribed from time
to time by the Commission.
SECTION 5.4. Reports by the Trustee.
----------------------
(a) On or before July 15 in each year commencing in 1999, in
which any of the Debt Securities are Outstanding, the Trustee shall transmit
by mail, first class postage prepaid, to the Securityholders, as their names
and addresses appear upon the Security Register, a brief report dated as of
the preceding May 15, if and to the extent required under Section 313(a) of
the Trust Indenture Act.
(b) The Trustee shall comply with Sections 313(b) and 313(c) of
the Trust Indenture Act.
(c) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with the Company,
with each stock exchange upon which any Debt Securities are listed (if so
listed) and also with the Commission. The Company agrees to notify the
Trustee when any Debt Securities become listed on any stock exchange.
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ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.1. Events of Default.
-----------------
(a) Whenever used herein with respect to Debt Securities of a
particular series, "Event of Default" means any one or more of the following
events that has occurred and is continuing:
(1) the Company defaults in the payment of any installment of
interest upon any of the Debt Securities of that series, including the
payment of any additional interest with respect thereto as required by
any indenture supplemental to this indenture, as and when the same shall
become due and payable, and continuance of such default for a period of
30 days; provided, however, that a valid extension of an interest
-------- -------
payment period by the Company in accordance with the terms of the Debt
Securities of that series shall not constitute a default in the payment
of interest for this purpose;
(2) the Company defaults in the payment of the principal of (or
premium, if any, on) any of the Debt Securities of that series as and
when the same shall become due and payable whether at maturity, upon
redemption, by declaration or otherwise, or in any payment required by
any sinking or analogous fund established with respect to that series;
(3) the Company fails to observe or perform any other of its
covenants or agreements with respect to that series contained in this
Indenture or otherwise established with respect to that series of Debt
Securities pursuant to Section 2.1 for a period of 60 days after the
date on which written notice of such failure, requiring the same to be
remedied and stating that such notice is a "Notice of Default"
hereunder, shall have been given to the Company by the Trustee, by
registered or certified mail, or to the Company and the Trustee by the
holders of at least 25% in principal amount of the Debt Securities of
that series at the time Outstanding;
(4) the Company, pursuant to or within the meaning of any
Bankruptcy Law, (i) commences a voluntary case, (ii) consents to the
entry of an order for relief against it in an involuntary case, (iii)
consents to the appointment of a Custodian of it or for all or
substantially all of its property or (iv) makes a general assignment for
the benefit of its creditors;
(5) a court of competent jurisdiction enters an order under any
Bankruptcy Law that (i) is for relief against the Company in an
involuntary case, (ii) appoints a Custodian of the Company for all or
substantially all of its property, or (iii) orders the liquidation of
the Company, and the order or decree remains unstayed and in effect for
90 days; or
(6) in the event Debt Securities are issued to a WPSR Trust or a
trustee of such trust in connection with the issuance of Trust
Securities by such WPSR Trust, such WPSR Trust shall have voluntarily or
involuntarily dissolved, wound-up its business or otherwise terminated
its existence, except in connection with (i) the distribution of Debt
Securities to holders of Trust Securities in liquidation of their
interests in such WPSR Trust, (ii) the redemption of all outstanding
Trust Securities of such WPSR Trust, and (iii) mergers, consolidations
or amalgamations, each as permitted by the Declaration of such WPSR
Trust.
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(b) If an Event of Default described in clauses (1), (2), (3) or
(6) of this Section 6.1 with respect to Debt Securities of any series at the
time outstanding occurs and is continuing, unless the principal of all the
Debt Securities of that series shall have already become due and payable,
either the Trustee or the holders of not less than 25% in aggregate principal
amount of the Debt Securities of that series then Outstanding hereunder, by
notice in writing to the Company (and to the Trustee, if given by such
Securityholders), may declare the principal of all the Debt Securities of that
series to be immediately due and payable, and upon any such declaration the
same shall become and be immediately due and payable, notwithstanding anything
contained in this Indenture or in the Debt Securities of that series or
established with respect to that series pursuant to Section 2.1 to the
contrary. If an Event of Default specified in clause (4) or (5) of Section
6.1(a) occurs or is continuing, then the principal amount of all the Debt
Securities shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Securityholder.
(c) At any time after the principal of the Debt Securities of
that series shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained
or entered as hereinafter provided, the holders of a majority in aggregate
principal amount of the Debt Securities of that series then Outstanding
hereunder, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if: (i) the Company has paid or
deposited with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Debt Securities of that series and the principal of (and
premium, if any, on) any and all Debt Securities of that series that shall
have become due otherwise than by acceleration (with interest upon such
principal and premium, if any, and, to the extent that such payment is
enforceable under applicable law, upon overdue installments of interest, at
the rate per annum expressed in the Debt Securities of that series to the date
of such payment or deposit) and the amount payable to the Trustee under
Section 7.6, and (ii) any and all Events of Default with respect to such
series, other than the nonpayment of principal on Debt Securities of that
series that shall not have become due by their terms, shall have been remedied
or waived as provided in Section 6.6. No such rescission and annulment shall
extend to or shall affect any subsequent default or impair any right
consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any right
with respect to Debt Securities of that series under this Indenture and such
proceedings shall have been discontinued or abandoned because of such
rescission or annulment or for any other reason or shall have been determined
adversely to the Trustee, then and in every such case the Company and the
Trustee shall be restored respectively to their former positions and rights
hereunder, and all rights, remedies and powers of the Company and the Trustee
shall continue as though no such proceedings had been taken.
SECTION 6.2. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee.
-------
(a) The Company covenants that (1) in case it shall default in
the payment of any installment of interest on any of the Debt Securities of a
series, or any payment required by any sinking or analogous fund established
with respect to that series as and when the same shall have become due and
payable, and such default shall have continued for a period of 90 days, or (2)
in case it shall default in the payment of the principal of (or premium, if
any, on) any of the Debt Securities of a series when the same shall have
become due and payable, whether upon maturity of the Debt Securities of a
series or upon redemption or upon declaration or otherwise, then, upon demand
of the Trustee, the Company will pay to the Trustee, for the benefit of the
holders of the Debt Securities of that series, the whole amount that then
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<PAGE>
shall have become due and payable on all such Debt Securities for principal
(and premium, if any) or interest, or both, as the case may be, with interest
upon the overdue principal (and premium, if any) and (to the extent that
payment of such interest is enforceable under applicable law and, if the Debt
Securities are held by a WPSR Trust, without duplication of any other amounts
paid by such WPSR Trust in respect thereof) upon overdue installments of
interest at the rate per annum expressed in the Debt Securities of that
series; and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection and the amount payable to the
Trustee under Section 7.6.
(b) If the Company shall fail to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any action or proceedings at law
or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceeding to judgment or final decree, and may
enforce any such judgment or final decree against the Company or other obligor
upon the Debt Securities of that series and collect the moneys adjudged or
decreed to be payable in the manner provided by law out of the property of the
Company or other obligor upon the Debt Securities of that series, wherever
situated.
(c) In case of any receivership, insolvency, liquidation,
bankruptcy, reorganization, readjustment, arrangement, composition or judicial
proceedings affecting the Company or its creditors or property, the Trustee
shall have power to intervene in such proceedings and take any action therein
that may be permitted by the court and shall (except as may be otherwise
provided by law) be entitled to file such proofs of claim and other papers and
documents as may be necessary or advisable in order to have the claims of the
Trustee and of the holders of Debt Securities of such series allowed for the
entire amount due and payable by the Company under this Indenture at the date
of institution of such proceedings and for any additional amount that may
become due and payable by the Company after such date, and to collect and
receive any moneys or other property payable or deliverable on any such claim,
and to distribute the same after the deduction of the amount payable to the
Trustee under Section 7.6; and any receiver, assignee or trustee in bankruptcy
or reorganization is hereby authorized by each of the holders of Debt
Securities of such series to make such payments to the Trustee, and, in the
event that the Trustee shall consent to the making of such payments directly
to such Securityholders, to pay to the Trustee any amount due it under Section
7.6.
(d) All rights of action and of asserting claims under this
Indenture, or under any of the terms established with respect to Debt
Securities of that series, may be enforced by the Trustee without the
possession of any of such Debt Securities, or the production thereof at any
trial or other proceeding relative thereto, and any such suit or proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for payment
to the Trustee of any amounts due under Section 7.6, be for the ratable
benefit of the holders of the Debt Securities of such series.
In case of an Event of Default, the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this Indenture by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant
or agreement contained in this Indenture or in aid of the exercise of any
power granted in this Indenture, or to enforce any other legal or equitable
right vested in the Trustee by this Indenture or by law.
Nothing contained herein shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Securityholder
any plan of reorganization, arrangement, adjustment or
24
<PAGE>
composition affecting the Debt Securities of that series or the rights of any
holder thereof or to authorize the Trustee to vote in respect of the claim of
any Securityholder in any such proceeding.
SECTION 6.3. Application of Moneys Collected
-------------------------------
Any moneys collected by the Trustee pursuant to this Article with
respect to a particular series of Debt Securities shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such moneys on account of principal (or premium, if any) or
interest, upon presentation of the Debt Securities of that series, and
notation thereon of the payment, if only partially paid, and upon surrender
thereof if fully paid:
FIRST: To the payment of costs and expenses of collection and of
all amounts payable to the Trustee under Section 7.6;
SECOND: To the payment of all Senior Indebtedness of the Company
if and to the extent required by Article XIII; and
THIRD: To the payment of the amounts then due and unpaid upon
Debt Securities of such series for principal (and premium, if any) and
interest, in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Debt Securities for
principal (and premium, if any) and interest, respectively.
SECTION 6.4. Limitation on Suits.
-------------------
(a) No holder of any Debt Security of any series shall have any
right by virtue or by availing of any provision of this Indenture to institute
any suit, action or proceeding in equity or at law upon or under or with
respect to this Indenture or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless (i) such holder previously shall have
given to the Trustee written notice of an Event of Default and of the
continuance thereof with respect to the Debt Securities of such series
specifying such Event of Default, as hereinbefore provided; (ii) the holders
of not less than 25% in aggregate principal amount of the Debt Securities of
such series then Outstanding shall have made written request upon the Trustee
to institute such action, suit or proceeding in its own name as trustee
hereunder; (iii) such holder or holders shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby; (iv) the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
failed to institute any such action, suit or proceeding; and (v) during such
60 day period, the holders of not less than a majority in principal amount of
the Debt Securities of that series do not give the Trustee a direction
inconsistent with the request.
(b) Notwithstanding anything contained herein to the contrary or
any other provisions of this Indenture, the right of any holder of any Debt
Security to receive payment of the principal of (and premium, if any) and
interest on such Debt Security, as therein provided, on or after the
respective due dates expressed in such Debt Security (or in the case of
redemption, on the redemption date), or to institute suit for the enforcement
of any such payment on or after such respective dates or redemption date,
shall not be impaired or affected without the consent of such holder, and by
accepting a Debt Security hereunder it is expressly understood, intended and
covenanted by the taker and holder of every Debt Security of such series with
every other such taker and holder and the Trustee, that no one or more holders
of Debt Securities of
25
<PAGE>
such series shall have any right in any manner whatsoever by virtue or by
availing of any provision of this Indenture to affect, disturb or prejudice
the rights of the holders of any other of such Debt Securities, or to obtain
or seek to obtain priority over or preference to any other such holder, or to
enforce any right under this Indenture, except in the manner herein provided
and for the equal, ratable and common benefit of all holders of Debt
Securities of such series. For the protection and enforcement of the
provisions of this Section, each and every Securityholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
SECTION 6.5. Rights and Remedies Cumulative; Delay or Omission Not
-----------------------------------------------------
Waiver.
------
(a) Except as otherwise provided in Section 2.7, all powers and
remedies given by this Article to the Trustee or to the Securityholders shall,
to the extent permitted by law, be deemed cumulative and not exclusive of any
other powers and remedies available to the Trustee or the holders of the Debt
Securities, by judicial proceedings or otherwise, to enforce the performance
or observance of the covenants and agreements contained in this Indenture or
otherwise established with respect to such Debt Securities.
(b) No delay or omission of the Trustee or of any holder of any
of the Debt Securities to exercise any right or power accruing upon any Event
of Default occurring and continuing as aforesaid shall impair any such right
or power, or shall be construed to be a waiver of any such default or an
acquiescence therein; and, subject to the provisions of Section 6.4, every
power and remedy given by this Article or by law to the Trustee or the
Securityholders may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Securityholders.
SECTION 6.6. Control by Securityholders.
--------------------------
The holders of a majority in aggregate principal amount of the
Debt Securities of any or all series affected (voting as a class) at the time
Outstanding, determined in accordance with Section 8.4, shall have the right
to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee with respect to such series; provided, however, that such
-------- -------
direction shall not be in conflict with any rule of law or with this Indenture
or be unduly prejudicial to the rights of holders of Debt Securities of any
other series at the time Outstanding determined in accordance with Section
8.4. Subject to the provisions of Section 7.1, the Trustee shall have the
right to decline to follow any such direction if the Trustee in good faith
shall, by a Responsible Officer or Responsible Officers of the Trustee,
determine that the proceeding so directed would involve the Trustee in
personal liability. The holders of a majority in aggregate principal amount of
the Debt Securities of any series at the time Outstanding affected thereby,
determined in accordance with Section 8.4, may on behalf of the holders of all
of the Debt Securities of such series waive any past default in the
performance of any of the covenants contained herein or established pursuant
to Section 2.1 with respect to such series and its consequences, except (i) a
default in the payment of the principal of, or premium, if any, or interest
on, any of the Debt Securities of that series as and when the same shall
become due by the terms of such Debt Securities otherwise than by acceleration
(unless such default has been cured and a sum sufficient to pay all matured
installments of interest and principal and any premium has been deposited with
the Trustee (in accordance with Section 6.1(c)), or (ii) a default in the
covenants contained in Section 4.6. Upon any such waiver, the default covered
thereby shall be deemed to be cured for all purposes of this Indenture and the
Company, the Trustee and the holders of the Debt Securities of such series
shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
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SECTION 6.7. Undertaking to Pay Costs.
------------------------
All parties to this Indenture agree, and each holder of any Debt
Securities by such holder's acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement
of any right or remedy under this Indenture, or in any suit against the
Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Securityholder, or
group of Securityholders, holding more than 10% in aggregate principal amount
of the Outstanding Debt Securities of any series, or to any suit instituted by
any Securityholder for the enforcement of the payment of the principal of (or
premium, if any) or interest on any Debt Security of such series, on or after
the respective due dates expressed in such Debt Security or established
pursuant to this Indenture.
SECTION 6.8. Acknowledgement Regarding Trust Preferred Securities.
----------------------------------------------------
The Company acknowledges that, with respect to the Debt Securities
held by a WPSR Trust or a Trustee of a WPSR Trust, if the Property Trustee of
such WPSR Trust fails to enforce its rights under this Indenture as the holder
of the series of Debt Securities held as the assets of such WPSR Trust, the
holders of the Trust Preferred Securities of such WPSR Trust may institute
legal proceedings directly against the Company to ensure such rights under the
Indenture without first instituting any legal proceedings against such
Property Trustee or any other Person.
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.1. Certain Duties and Responsibilities of Trustee.
----------------------------------------------
(a) The Trustee, prior to the occurrence of an Event of Default
with respect to the Debt Securities of a series and after the curing of all
Events of Default with respect to the Debt Securities of that series that may
have occurred, shall undertake to perform with respect to the Debt Securities
of such series such duties and only such duties as are specifically set forth
in this Indenture, and no implied covenants shall be read into this Indenture
against the Trustee. In case an Event of Default with respect to the Debt
Securities of a series has occurred (that has not been cured or waived), the
Trustee shall exercise with respect to Debt Securities of that series such of
the rights and powers vested in it by this Indenture, and use the same degree
of care and skill in their exercise, as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs.
(b) no provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(1) prior to the occurrence of an Event of Default with respect
to the Debt Securities of a series and after the curing or waiving of
all such Events of Default with respect to that series that may have
occurred:
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(A) the duties and obligations of the Trustee shall, with
respect to the Debt Securities of such series, be determined solely by the
express provisions of this Indenture, and the Trustee shall not be liable with
respect to the Debt Securities of such series except for the performance of
such duties and obligations as are specifically set forth in this Indenture,
and no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(B) in the absence of bad faith on the part of the Trustee, the
Trustee may with respect to the Debt Securities of such series 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 Trustee
and conforming to the requirements of this Indenture; but in the case of any
such certificates or opinions that by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the requirement
of this Indenture;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of
the Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the holders of not less than a majority in principal amount
of the Debt Securities of any series at the time Outstanding relating to
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee under this Indenture with respect to the Debt
Securities of that series; and
(4) None of the provisions contained in this Indenture shall
require the 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 there is reasonable
ground for believing that the repayment of such funds or liability is
not reasonably assured to it under the terms of this Indenture or
adequate indemnity against such risk is not reasonably assured to it.
SECTION 7.2. Certain Rights of Trustee.
-------------------------
Except as otherwise provided in Section 7.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
security or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Board Resolution or an
Officers' Certificate (unless other evidence in respect thereof is
specifically prescribed herein);
(c) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted hereunder in good faith and in reliance thereon;
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(d) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders, pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that may be incurred therein or thereby; nothing contained herein shall,
however, relieve the Trustee of the obligation, upon the occurrence of an
Event of Default with respect to a series of the Debt Securities (that has not
been cured or waived) to exercise with respect to Debt Securities of that
series such of the rights and powers vested in it by this Indenture, and to
use the same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his own
affairs;
(e) the Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Indenture;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
security, or other papers or documents, unless requested in writing so to do
by the holders of not less than a majority in principal amount of the
Outstanding Debt Securities of the particular series affected thereby
(determined as provided in Section 8.4); provided, however, that if the
-------- -------
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such costs, expenses or liabilities as a
condition to so proceeding. The reasonable expense of every such examination
shall be paid by the Company or, if paid by the Trustee, shall be repaid by
the Company upon demand; and
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
SECTION 7.3. Trustee Not Responsible for Recitals or Issuance of Debt.
--------------------------------------------------------
(a) The recitals contained herein and in the Debt Securities
shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same.
(b) The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debt Securities.
(c) The Trustee shall not be accountable for the use or
application by the Company of any of the Debt Securities or of the proceeds of
such Debt Securities, or for the use or application of any moneys paid over by
the Trustee in accordance with any provision of this Indenture or established
pursuant to Section 2.1, or for the use or application of any moneys received
by any paying agent other than the Trustee.
SECTION 7.4. May Hold Debt Securities.
------------------------
The Trustee or any paying agent or Security Registrar, in its
individual or any other capacity, may become the owner or pledgee of Debt
Securities with the same rights it would have if it were
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not Trustee, paying agent or Security Registrar.
SECTION 7.5. Moneys Held in Trust.
--------------------
Subject to the provisions of Section 11.5, all moneys received by
the Trustee shall, until used or applied as herein provided, be held in trust
for the purposes for which they were received, but need not be segregated from
other funds except to the extent required by law. The Trustee shall be under
no liability for interest on any moneys received by it hereunder except such
as it may agree with the Company to pay thereon. So long as no Event of
Default shall have occurred and be continuing, all interest allowed on any
such moneys shall be paid from time to time upon the written order of the
Company, signed by the Chairman, President or a Vice President or the
Treasurer or an Assistant Treasurer of the Company.
SECTION 7.6. Compensation and Reimbursement.
------------------------------
(a) The Company covenants and agrees to pay to the Trustee, and
the Trustee shall be entitled to, such reasonable compensation (which shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust), as the Company and the Trustee may from time to
time agree in writing, for all services rendered by it in the execution of the
trusts hereby created and in the exercise and performance of any of the powers
and duties hereunder of the Trustee, and, except as otherwise expressly
provided herein, the Company will pay or reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of
its counsel and of all Persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad
faith. The Company also covenants to indemnify the Trustee (and its officers,
agents, directors and employees) for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on the
part of the Trustee and arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself against any claim of liability in the premises.
(b) The obligations of the Company under this Section to
compensate and indemnify the Trustee and to pay or reimburse the Trustee for
expenses, disbursements and advances shall constitute additional indebtedness
hereunder and shall survive the satisfaction and discharge of this Indenture.
Such additional indebtedness shall be secured by a lien prior to that of the
Debt Securities upon all property and funds held or collected by the Trustee
as such, except funds held in trust for the benefit of the holders of
particular Debt Securities.
SECTION 7.7. Reliance on Officers' Certificate.
---------------------------------
Except as otherwise provided in Section 7.1, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking
or suffering or omitting to take any action hereunder, such matter (unless
other evidence in respect thereof be herein specifically prescribed) may, in
the absence of negligence or bad faith on the part of the Trustee, be deemed
to be conclusively proved and established by an Officers' Certificate
delivered to the Trustee, and such certificate, in the absence of negligence
or bad faith on the part of the Trustee, shall be full warrant to the Trustee
for any action taken, suffered or omitted to be taken by it under the
provisions of this Indenture upon the faith thereof.
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SECTION 7.8. Qualification; Conflicting Interests.
------------------------------------
If the Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee
and the Company shall in all respects comply with the provisions of Section
310(b) of the Trust Indenture Act.
SECTION 7.9. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee with respect to the Debt
Securities issued hereunder which shall at all times be a corporation
organized and doing business under the laws of the United States of America or
any State or Territory thereof or of the District of Columbia, or a
corporation or other Person permitted to act as trustee by the Commission,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least fifty million U.S. dollars
($50,000,000), and subject to supervision or examination by federal, state,
territorial or District of Columbia authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. The Company may not, nor may any Person
directly or indirectly controlling, controlled by, or under common control
with the Company, serve as Trustee. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section, the
Trustee shall resign immediately in the manner and with the effect specified
in Section 7.10.
SECTION 7.10. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) The Trustee or any successor hereafter appointed, may at any
time resign with respect to the Debt Securities of one or more series by
giving written notice thereof to the Company and by transmitting notice of
resignation by mail, first class postage prepaid, to the Securityholders of
such series, as their names and addresses appear upon the Security Register.
Upon receiving such notice of resignation, the Company shall promptly appoint
a successor trustee with respect to Debt Securities of such series by written
instrument, in duplicate, executed by order of the Board of Directors, one
copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor trustee. If no successor trustee shall have been so
appointed and have accepted appointment within 30 days after the mailing of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee with respect
to Debt Securities of such series, or any Securityholder of that series who
has been a bona fide holder of a Debt Security or Debt Securities for at least
six months may, subject to the provisions of Section 6.8, on behalf of himself
and all others similarly situated, petition any such court for the appointment
of a successor trustee. Such court may thereupon after such notice, if any,
as it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any one of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of
Section 7.8 after written request therefor by the Company or by any
Securityholder who has been a bona fide holder of a Debt Security or
Debt Securities for at least six months; or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 7.9 and shall fail to resign after written request
therefor by the Company or by any such Securityholder;
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or
(3) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy
proceeding, or a receiver of the Trustee or of its property shall be
appointed or consented to, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then, in any such case, the
Company may remove the Trustee with respect to all Debt Securities and
appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to
the successor trustee, or, subject to the provisions of Section 6.8,
unless the Trustee's duty to resign is stayed as provided herein, any
Securityholder who has been a bona fide holder of a Debt Security or
Debt Securities for at least six months may, on behalf of that holder
and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a
successor trustee. Such court may thereupon after such notice, if any,
as it may deem proper and prescribe, remove the Trustee and appoint a
successor trustee.
(c) The holders of a majority in aggregate principal amount of
the Debt Securities of any series at the time Outstanding may at any time
remove the Trustee with respect to such series by so notifying the Trustee and
the Company and may appoint a successor Trustee for such series with the
consent of the Company.
(d) Any resignation or removal of the Trustee and appointment of
a successor trustee with respect to the Debt Securities of a series pursuant
to any of the provisions of this Section shall become effective upon
acceptance of appointment by the successor trustee as provided in Section
7.11.
(e) Any successor trustee appointed pursuant to this Section may
be appointed with respect to the Debt Securities of one or more series or all
of such series, and at any time there shall be only one Trustee with respect
to the Debt Securities of any particular series.
SECTION 7.11. Acceptance of Appointment By Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor trustee
with respect to all Debt Securities, every such successor trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor trustee all the rights, powers, and trusts of
the retiring Trustee and shall duly assign, transfer and deliver to such
successor trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor trustee
with respect to the Debt Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor trustee with respect to the
Debt Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor
trustee all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Debt
32
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Securities of that or those series to which the appointment of such successor
trustee relates, (2) shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Debt Securities of that or
those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of
the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust, that
each such Trustee shall be trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any other such
Trustee and that no Trustee shall be responsible for any act or failure to act
on the part of any other Trustee hereunder; and upon the execution and
delivery of such supplemental indenture, the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein, such
retiring Trustee shall with respect to the Debt Securities of that or those
series to which the appointment of such successor trustee relates have no
further responsibility for the exercise of rights and powers or for the
performance of the duties and obligations vested in the Trustee under this
Indenture, and each such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Debt Securities of that or those
series to which the appointment of such successor trustee relates; but, on
request of the Company or any successor trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor trustee, to the extent
contemplated by such supplemental indenture, the property and money held by
such retiring Trustee hereunder with respect to the Debt Securities of that or
those series to which the appointment of such successor trustee relates.
(c) Upon request of any such successor trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor trustee shall accept its appointment unless at
the time of such acceptance such successor trustee shall be qualified and
eligible under this Article.
(e) Upon acceptance of appointment by a successor trustee as
provided in this Section, the Company shall transmit notice of the succession
of such trustee hereunder by mail, first class postage prepaid, to the
Securityholders, as their names and addresses appear upon the Security
Register. If the Company fails to transmit such notice within ten days after
acceptance of appointment by the successor trustee, the successor trustee
shall cause such notice to be transmitted at the expense of the Company.
SECTION 7.12. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided that such
-------- ----
corporation shall be qualified under the provisions of Section 7.8 and
eligible under the provisions of Section 7.9, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding. In case any Debt Securities
shall have been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Debt
Securities so authenticated with the same effect as if such successor trustee
had itself authenticated such Debt Securities.
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SECTION 7.13. Preferential Collection of Claims Against the Company.
-----------------------------------------------------
The Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship described in Section 311(b)
of the Trust Indenture Act. A Trustee who has resigned or been removed shall
be subject to Section 311(a) of the Trust Indenture Act to the extent included
therein.
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
SECTION 8.1. Evidence of Action by Securityholders.
-------------------------------------
Whenever in this Indenture it is provided that the holders of a
majority or specified percentage in aggregate principal amount of the Debt
Securities of a particular series may take any action (including the making of
any demand or request, the giving of any notice, consent or waiver or the
taking of any other action), the fact that at the time of taking any such
action the holders of such majority or specified percentage of that series
have joined therein may be evidenced by any instrument or any number of
instruments of similar tenor executed by such holders of Debt Securities of
that series in Person or by agent or proxy appointed in writing.
If the Company shall solicit from the Securityholders of any
series any request, demand, authorization, direction, notice, consent, waiver
or other action, the Company may, at its option, as evidenced by an Officers'
Certificate, fix in advance a record date for such series for the
determination of Securityholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action, but the
Company shall have no obligation to do so. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or
other action may be given before or after the record date, but only the
Securityholders of record at the close of business on the record date shall be
deemed to be Securityholders for the purposes of determining whether
Securityholders of the requisite proportion of Outstanding Debt Securities of
that series have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action, and for
that purpose the Outstanding Debt Securities of that series shall be computed
as of the record date; provided, however, that no such authorization,
-------- -------
agreement or consent by such Securityholders on the record date shall be
deemed effective unless it shall become effective pursuant to the provisions
of this Indenture not later than six months after the record date.
SECTION 8.2. Proof of Execution by Securityholders.
-------------------------------------
Subject to the provisions of Section 7.1, proof of the execution
of any instrument by a Securityholder (such proof will not require
notarization) or his agent or proxy and proof of the holding by any Person of
any of the Debt Securities shall be sufficient if made in the following
manner:
(a) The fact and date of the execution by any such Person of any
instrument may be proved in any reasonable manner acceptable to the Trustee.
(b) The ownership of Debt Securities shall be proved by the
Security Register of such Debt Securities or by a certificate of the Security
Registrar thereof.
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(c) The Trustee may require such additional proof of any matter
referred to in this Section as it shall deem necessary.
SECTION 8.3. Who May be Deemed Owners.
------------------------
Prior to the due presentment for registration of transfer of any
Debt Security, the Company, the Trustee, any paying agent and any Security
Registrar may deem and treat the Person in whose name such Debt Security shall
be registered upon the books of the Company as the absolute owner of such Debt
Security (whether or not such Debt Security shall be overdue and
notwithstanding any notice of ownership or writing thereon made by anyone
other than the Security Registrar) for the purpose of receiving payment of or
on account of the principal of, premium, if any, and (subject to Section 2.3)
interest on such Debt Security and for all other purposes; and neither the
Company nor the Trustee nor any paying agent nor any Security Registrar shall
be affected by any notice to the contrary.
SECTION 8.4. Certain Debt Securities Owned by Company Disregarded.
----------------------------------------------------
In determining whether the holders of the requisite aggregate
principal amount of Debt Securities of a particular series have concurred in
any direction, consent or waiver under this Indenture, the Debt Securities of
that series that are owned by the Company or any other obligor on the Debt
Securities of that series or by any Person directly or indirectly controlling
or controlled by or under common control with the Company or any other obligor
on the Debt Securities of that series (other than a WPSR Trust) shall be
disregarded and deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, consent or waiver, only
Debt Securities of such series that the Trustee actually knows are so owned
shall be so disregarded. The Debt Securities so owned that have been pledged
in good faith may be regarded as Outstanding for the purposes of this Section,
if the pledgee shall establish to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Debt Securities and that the
pledgee is not a Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company or any such other
obligor. In case of a dispute as to such right, any decision by the Trustee
taken upon the advice of counsel shall be full protection to the Trustee.
SECTION 8.5. Actions Binding on Future Securityholders.
-----------------------------------------
At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 8.1, of the taking of any action by the
holders of a majority or specified percentage in aggregate principal amount of
the Debt Securities of a particular series in connection with such action, any
holder of a Debt Security of that series that is shown by the evidence to be
included in the Debt Securities the holders of which have consented to such
action may, by filing written notice with the Trustee, and upon proof of
holding as provided in Section 8.2, revoke such action so far as concerns such
Debt Security. Except as aforesaid, any such action taken by the holder of any
Debt Security shall be conclusive and binding upon such holder and upon all
future holders and owners of such Debt Security, and of any Debt Security
issued in exchange therefor, on registration of transfer thereof or in place
thereof, irrespective of whether or not any notation in regard thereto is made
upon such Debt Security. Any action taken by the holders of a majority or
specified percentage in aggregate principal amount of the Debt Securities of a
particular series in connection with such action shall be conclusively binding
upon the Company, the Trustee and the holders of all the Debt Securities of
that series.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures Without the Consent of Securityholders.
--------------------------------------------------------------
In addition to any supplemental indenture otherwise authorized by
this Indenture, the Company and the Trustee may from time to time and at any
time enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act as then in effect),
without the consent of the Securityholders, for one or more of the following
purposes:
(a) to cure any ambiguity, defect or inconsistency herein or in
the Debt Securities of any series;
(b) to comply with Article X;
(c) to provide for uncertificated Debt Securities in addition to
or in place of certificated Debt Securities;
(d) to add to the covenants of the Company for the benefit of the
holders of all or any series of Debt Securities (and if such covenants are to
be for the benefit of less than all series of Debt Securities, stating that
such covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the Company;
(e) to add to, delete from, or revise the conditions, limitations
and restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Debt Securities, as herein set forth;
(f) to make any change that does not adversely affect the rights
of any Securityholder in any material respect; or
(g) to provide for the issuance of and establish the form and
terms and conditions of the Debt Securities of any series as provided in
Section 2.1, to establish the form of any certifications required to be
furnished pursuant to the terms of this Indenture or any series of Debt
Securities, or to add to the rights of the holders of any series of Debt
Securities.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, and to make any further
appropriate agreements and stipulations that may be therein contained, but the
Trustee shall not be obligated to enter into any such supplemental indenture
that affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed by the Company and the Trustee without the consent of
the holders of any of the Debt Securities at the time Outstanding
notwithstanding any of the provisions of Section 9.2.
SECTION 9.2. Supplemental Indentures With Consent of Securityholders.
-------------------------------------------------------
With the consent (evidenced as provided in Section 8.1) of the
holders of not less than a
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majority in aggregate principal amount of the Debt Securities of each series
affected by such supplemental indenture or indentures at the time Outstanding,
the Company, when authorized by a Board Resolution, and the Trustee may from
time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act as then in effect) for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any manner not
covered by Section 9.1 the rights of the holders of the Debt Securities of
such series under this Indenture; provided, however, that no such supplemental
-------- -------
indenture shall, without the consent of the holders of each Debt Security then
Outstanding and affected thereby, (i) extend the fixed maturity of any Debt
Securities of any series, or reduce the principal amount thereof, or reduce
the rate or extend the time of payment of interest thereon, or reduce any
premium payable upon the redemption thereof or (ii) reduce the aforesaid
percentage of Debt Securities, the holders of which are required to consent to
any such supplemental indenture.
It shall not be necessary for the consent of the Securityholders
of any series affected thereby under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if
such consent shall approve the substance thereof.
SECTION 9.3. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture pursuant to the
provisions of this Article or of Section 10.1, this Indenture shall, with
respect to such series, be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the holders of Debt Securities of the series affected thereby
shall thereafter be determined, exercised and enforced hereunder subject in
all respects to such modifications and amendments, and all the terms and
conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
SECTION 9.4. Debt Securities Affected by Supplemental Indentures.
---------------------------------------------------
Debt Securities of any series, affected by a supplemental
indenture, authenticated and delivered after the execution of such
supplemental indenture pursuant to the provisions of this Article or of
Section 10.1, may bear a notation in form approved by the Company, provided
such form meets the requirements of any securities exchange upon which such
series may be listed, as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Debt Securities of that
series so modified as to conform, in the opinion of the Board of Directors of
the Company, to any modification of this Indenture contained in any such
supplemental indenture may be prepared by the Company, authenticated by the
Trustee and delivered in exchange for the Debt Securities of that series then
Outstanding.
SECTION 9.5. Execution of Supplemental Indentures.
------------------------------------
Upon the request of the Company, accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders required
to consent thereto as aforesaid, the Trustee shall join with the Company in
the execution of such supplemental indenture unless such supplemental
indenture affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion but
shall not be obligated to enter into such supplemental indenture. The
Trustee, subject to the
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provisions of Section 7.1, may receive an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant to this Article is
authorized or permitted by, and conforms to, the terms of this Article and
that it is proper for the Trustee under the provisions of this Article to join
in the execution thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall transmit by mail, first class postage prepaid, a notice, setting forth
in general terms the substance of such supplemental indenture, to the
Securityholders of all series affected thereby as their names and addresses
appear upon the Security Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
ARTICLE X
SUCCESSOR CORPORATION
SECTION 10.1. Company May Consolidate, Etc.
----------------------------
Nothing contained in this Indenture or in any of the Debt
Securities shall prevent any consolidation or merger of the Company with or
into any other corporation or corporations (whether or not affiliated with the
Company), or successive consolidations or mergers in which the Company or its
successor or successors shall be a party or parties, or shall prevent any
sale, conveyance, transfer or other disposition of the property of the Company
or its successor or successors as an entirety, or substantially as an
entirety, to any other corporation (whether or not affiliated with the Company
or its successor or successors) authorized to acquire and operate the same;
provided, however, that (i) the entity formed by such consolidation, or into
- -------- -------
which the Company shall have been merged, or which shall have acquired such
property (the "successor corporation") shall be a corporation organized under
a state of the United States or the District of Columbia, (ii) upon such
consolidation, merger, sale, conveyance, transfer or other disposition, the
successor corporation shall expressly assume, by supplemental indenture (which
shall conform to the provisions of the Trust Indenture Act, as then in
effect), satisfactory in form to the Trustee and executed and delivered to the
Trustee, the due and punctual payment of the principal of (premium, if any)
and interest on all of the Debt Securities of all series in accordance with
the terms of each series, according to their tenor and the due and punctual
performance and observance of all the covenants and conditions of this
Indenture with respect to each series or established with respect to such
series pursuant to Section 2.1 to be kept or performed by the Company, and
(iii) immediately following such consolidation, merger, sale, conveyance,
transfer or other disposition, no Event of Default and no event which, after
notice or lapse of time, or both, would become an Event of Default shall have
occurred and be continuing.
SECTION 10.2 Successor Corporation Substituted.
---------------------------------
(a) In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition and upon the assumption by the successor
corporation, by supplemental indenture, executed and delivered to the Trustee
and satisfactory in form to the Trustee, of the due and punctual payment of
the principal of, premium, if any, and interest on all of the Debt Securities
of all series Outstanding and the due and punctual performance of all of the
covenants and conditions of this Indenture or established with respect to each
series of the Debt Securities pursuant to Section 2.1 to be performed by the
Company, with respect to each series, such successor corporation shall succeed
to and be substituted for the Company, with the same effect as if it had been
named as the Company herein and thereupon the Company shall be relieved
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of all obligations and covenants under this Indenture and the Debt Securities.
(b) In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition, such changes in phraseology and form (but not
in substance) may be made in the Debt Securities thereafter to be issued as
may be appropriate.
(c) Nothing contained in this Indenture or in any of the Debt
Securities shall prevent the Company from merging any other Person (whether or
not affiliated with the Company) into itself or acquiring by purchase or
otherwise all or any part of the property of any other Person (whether or not
affiliated with the Company).
SECTION 10.3 Evidence of Consolidation, Etc. to Trustee.
------------------------------------------
The Trustee, subject to the provisions of Section 7.1, may receive
an Opinion of Counsel as conclusive evidence that any such consolidation,
merger, sale, conveyance, transfer or other disposition, and any such
assumption, comply with the provisions of this Article.
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ARTICLE XI
SATISFACTION AND DISCHARGE
SECTION 11.1. Satisfaction and Discharge of Indenture.
---------------------------------------
If at any time: (a) the Company shall have delivered to the
Trustee for cancellation all Debt Securities of a series theretofore
authenticated (other than any Debt Securities that shall have been destroyed,
lost or stolen and that shall have been replaced or paid as provided in
Section 2.7 and Debt Securities for whose payment money or Governmental
Obligations have theretofore been deposited in trust or segregated and held in
trust by the Company (and thereupon repaid to the Company or discharged from
such trust, as provided in Section 11.5)); or (b) all such Debt Securities of
a particular series not theretofore delivered to the Trustee for cancellation
shall have become due and payable, or are by their terms to become due and
payable within one year or are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of notice of
redemption, and the Company shall deposit or cause to be deposited with the
Trustee as trust funds the entire amount in moneys or Governmental Obligations
or a combination thereof, sufficient in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay at maturity or upon redemption all
Debt Securities of that series not theretofore delivered to the Trustee for
cancellation, including principal (and premium, if any) and interest due or to
become due to such date of maturity or date fixed for redemption, as the case
may be, and if the Company shall also pay or cause to be paid all other sums
payable hereunder with respect to such series by the Company; and if the
Company has delivered to the Trustee an Opinion of Counsel based on the fact
that (x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (y) since the date hereof, there has been
a change in the applicable United States federal income tax law, in either
case to the effect that, and such opinion shall confirm that, the holders of
the Deb Securities of such series will not recognize income, gain or loss for
United States federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to United States federal income
tax on the same amount and in the same manner and at the same times, as would
have been the case if such deposit, defeasance and discharge had not occurred,
then this Indenture shall thereupon cease to be of further effect with respect
to such series except for the provisions of Sections 2.3, 2.5, 2.7, 4.1, 4.2,
4.3 and 7.10, that shall survive until the date of maturity or redemption
date, as the case may be, and Sections 7.6 and 11.5, that shall survive to
such date and thereafter, and the Trustee, on demand of the Company and at the
cost and expense of the Company, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture with respect to
such series.
SECTION 11.2. Discharge of Obligations.
------------------------
If at any time all Debt Securities of a particular series not
heretofore delivered to the Trustee for cancellation or that have not become
due and payable as described in Section 11.1 shall have been paid by the
Company by depositing irrevocably with the Trustee as trust funds the entire
amount in moneys or Governmental Obligations, or a combination thereof,
sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof, delivered to
the Trustee to pay at maturity or upon redemption under arrangements
satisfactory to the Trustee for the giving of notice of redemption all such
Debt Securities of that series not theretofore delivered to the Trustee for
cancellation, including principal (and premium, if any) and interest due or to
become due to such date of maturity or date fixed for redemption, as the case
may be, and if the Company shall also pay or cause to be paid all other sums
payable hereunder by the Company with respect to such series, then after the
date such
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moneys or Governmental Obligations, as the case may be, are deposited with the
Trustee then, and if the Company has delivered to the Trustee an Opinion of
Counsel based on the fact that (x) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling or (y) since the date
hereof, there has been a change in the applicable United States federal income
tax law, in either case to the effect that, and such opinion shall confirm
that, the holders of the Debt Securities of such series will not recognize
income, gain or loss for United States federal income tax purposes as a result
of such deposit, defeasance and discharge and will be subject to United States
federal income tax on the same amount and in the same manner and at the same
times, as would have been the case if such deposit, defeasance and discharge
had not occurred, the obligations of the Company, under this Indenture with
respect to such series shall cease to be of further effect excpt for the
provisions of Sections 2.3, 2.5, 2.7, 4.1, 4.2, 4.3, and 7.10 hereof that
shall survive until such Debt Securities shall mature and be paid, and
Sections 7.6 and 11.5 shall survive to such date and thereafter.
SECTION 11.3. Deposited Moneys to be Held In Trust.
------------------------------------
All moneys or Governmental Obligations deposited with the Trustee
pursuant to Sections 11.1 or 11.2 shall be held in trust and shall be
available for payment as due, either directly or through any paying agent
(including the Company acting as its own paying agent), to the holders of the
particular series of Debt Securities for the payment or redemption of which
such moneys or Governmental Obligations have been deposited with the Trustee.
SECTION 11.4. Payment of Moneys Held by Paying Agents.
---------------------------------------
In connection with the satisfaction and discharge of this
Indenture, or the Company's obligation with respect to the Debt Securities of
a series, all moneys or Governmental Obligations then held by any paying agent
under the provisions of this Indenture shall, upon demand of the Company, be
paid to the Trustee and thereupon such paying agent shall be released from all
further liability with respect to such moneys or Governmental Obligations.
SECTION 11.5. Repayment to Company.
--------------------
Any moneys or Governmental Obligations deposited with any paying
agent or the Trustee, or then held by the Company, in trust for payment of
principal of or premium or interest on the Debt Securities of a particular
series that are not applied but remain unclaimed by the holders of such Debt
Securities for at least two years after the date upon which the principal of
(and premium, if any) or interest on such Debt Securities shall have
respectively become due and payable, shall be repaid to the Company on May 31
of each year or (if then held by the Company) shall be discharged from such
trust; and thereupon the paying agent and the Trustee shall be released from
all further liability with respect to such moneys or Governmental Obligations,
and the holder of any of the Debt Securities entitled to receive such payment
shall thereafter, as an unsecured general creditor, look only to the Company
for the payment thereof.
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ARTICLE XII
IMMUNITY OF INCORPORATORS, SHAREHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.1. No Recourse.
-----------
No recourse under or upon any obligation, covenant or agreement of
this Indenture, or of any Debt Security, or for any claim based thereon or
otherwise in respect thereof, shall be had against any incorporator,
shareholder, officer or director, past, present or future as such, of the
Company or of any predecessor or successor corporation, either directly or
through the Company or any such predecessor or successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise; it being expressly understood that
this Indenture and the obligations issued hereunder are solely corporate
obligations, and that no such personal liability whatever shall attach to, or
is or shall be incurred by, the incorporators, shareholders, officers or
directors as such, of the Company or of any predecessor or successor
corporation, or any of them, because of the creation of the indebtedness
hereby authorized, or under or by reason of the obligations, covenants or
agreements contained in this Indenture or in any of the Debt Securities or
implied herefrom; and that any and all such personal liability of every name
and nature, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against, every such
incorporator, shareholder, officer or director as such, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Debt Securities or implied therefrom, are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issuance of such Debt Securities.
ARTICLE XIII
SUBORDINATION OF DEBT SECURITIES
SECTION 13.1. Agreement to Subordinate.
------------------------
The Company covenants and agrees, and each holder of Debt
Securities issued hereunder, by such Securityholder's acceptance thereof,
likewise covenants and agrees, that all Debt Securities shall be issued
subject to the provisions of this Article XIII, and each Holder of a Debt
Security, 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 Debt Securities issued hereunder shall, to the extent and
in the manner hereinafter set forth, be subordinated and junior in right of
payment to the prior payment in full of all Senior Indebtedness of the
Company, whether outstanding at the date of this Indenture or thereafter
incurred. Senior Indebtedness shall continue to be Senior Indebtedness and
entitled to the benefits of this Article XIII irrespective of any amendment,
modification or waiver of any term of such Senior Indebtedness.
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No provision of this Article XIII shall prevent the occurrence of
any default or Event of Default hereunder.
SECTION 13.2. Default on Senior Indebtedness.
------------------------------
In the event that any default by the Company in the payment of
principal, premium, interest or any other payment due on any Senior
Indebtedness of the Company has occurred and is continuing and any applicable
grace period with respect to such default has expired and such default has not
been cured or waived or ceased to exist, or in the event that the maturity of
any Senior Indebtedness of the Company has been accelerated because of a
default, then, in either case, no payment shall be made by the Company with
respect to the principal (including redemption and sinking fund payments) of,
or premium, if any, or interest on the Debt Securities.
In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee when such payment is prohibited by the
preceding paragraph of this Section 13.2, 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 in writing
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 13.3 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 of the Company shall first be paid in full, or payment thereof
provided for in money in accordance with its terms, before any payment is made
by the Company on account of the principal (and premium, if any) or interest
on the Debt Securities; 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 Securityholders or the Trustee would be entitled to
receive from the Company, except for the provisions of this Article XIII,
shall be paid by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or
distribution, or by the Securityholders or by the Trustee under the Indenture
if received by them or it, directly to the holders of Senior Indebtedness of
the Company (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 Securityholders 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
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be received by the Trustee before all Senior Indebtedness of the Company 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, and their respective interests may
appear, as calculated by the Company, for application to the payment of all
Senior Indebtedness of the Company 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 XIII, 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 XIII with respect to the Debt Securities to the payment of all Senior
Indebtedness of the Company that may at the time be outstanding, provided 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 X of
this Indenture shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 13.3 if such other corporation
shall, as a part of such consolidation, merger, conveyance or transfer, comply
with the conditions stated in Article X of this Indenture. Nothing in Section
13.2 or in this Section 13.3 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.6 of this Indenture.
SECTION 13.4. Subrogation.
-----------
Subject to the payment in full of all Senior Indebtedness of the
Company, the rights of the Securityholders 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 (and premium, if any) and
interest on the Debt Securities 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
Securityholders or the Trustee would be entitled except for the provisions of
this Article XIII, and no payment pursuant to the provisions of this Article
XIII to or for the benefit of the holders of such Senior Indebtedness by
Securityholders or the Trustee, shall, as between the Company, its creditors
other than holders of Senior Indebtedness of the Company, and the holders of
the Debt Securities, 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 XIII are and are intended solely for the purposes of defining the
relative rights of the holders of the Debt Securities, on the one hand, and
the holders of such Senior Indebtedness on the other hand.
Nothing contained in this Article XIII or elsewhere in this
Indenture or in the Debt Securities is intended to or shall impair, as between
the Company, its creditors other than the holders of Senior Indebtedness of
the Company, and the holders of the Debt Securities, the obligation of the
Company, which is absolute and unconditional, to pay to the holders of the
Debt Securities the principal of (and premium, if any) and interest on the
Debt Securities as and when the same shall become due and payable in
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accordance with their terms, or is intended to or shall affect the relative
rights of the holders of the Debt Securities and creditors of the Company,
other than the holders of Senior Indebtedness of the Company, nor shall
anything herein or therein prevent the Trustee or the holder of any Debt
Security from exercising all remedies otherwise permitted by applicable law
upon default under the Indenture, subject to the rights, if any, under this
Article XIII 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 XIII, the Trustee, subject to the provisions of Section 7.1
of this Indenture, and the Securityholders shall be entitled to conclusively
rely upon any order or decree made by 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 Securityholders, 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
XIII.
SECTION 13.5. Trustee to Effectuate Subordination.
-----------------------------------
Each Securityholder by such Securityholder's acceptance thereof
authorizes and directs the Trustee on such Securityholder's behalf to take
such action as may be necessary or appropriate to effectuate the subordination
provided in this Article XIII and appoints the Trustee such Securityholder's
attorney-in-fact for any and all such purposes.
SECTION 13.6. Notice by the Company.
---------------------
The Company shall give prompt written notice to a Responsible
Officer of the Trustee 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
Debt Securities pursuant to the provisions of this Article XIII.
Notwithstanding the provisions of this Article XIII or any other provision of
this Indenture, 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 Debt Securities pursuant to the
provisions of this Article XIII, unless and until a Responsible Officer of the
Trustee shall have received written notice thereof from the Company or a
holder or holders of Senior Indebtedness of the Company or from any trustee
therefor; and before the receipt of any such written notice, the Trustee,
subject to the provisions of Section 7.1 of this 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
13.6 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 Debt Security), 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 7.1 of the
Indenture, shall be entitled to conclusively rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior
Indebtedness of the Company (or a trustee on behalf of such holder), to
establish that such notice has been given by a holder of such Senior
Indebtedness or a trustee on behalf of any such holder or holders. In
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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 XIII, 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 XIII, 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 13.7. 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 XIII 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 this Indenture shall deprive the Trustee
of any of its rights as such holder.
With respect to the holders of Senior Indebtedness of the Company,
the Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article XIII, and no implied
covenants or obligations with respect to the holders of such Senior
Indebtedness shall be read into this Indenture or against the Trustee. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of such
Senior Indebtedness and, subject to the provisions of Section 7.1 of this
Indenture, the Trustee shall not be liable to any holder of such Senior
Indebtedness if it shall pay over or deliver to Securityholders, the Company
or any other Person money or assets to which any holder of such Senior
Indebtedness shall be entitled by virtue of this Article XIII or otherwise.
SECTION 13.8. Subordination May Not Be Impaired.
---------------------------------
No right of any present or future holder of any Senior
Indebtedness of the Company to enforce subordination as herein provided shall
be at any time in any way 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 this Indenture, 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 of the Company may, at any time
and from time to time, without the consent of or notice to the Trustee or the
Securityholders, without incurring responsibility to the Securityholders and
without impairing or releasing the subordination provided in this Article XIII
or the obligations hereunder of the holders of the Debt Securities 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.
46
<PAGE>
ARTICLE XIV
MISCELLANEOUS PROVISIONS
SECTION 14.1. Effect on Successors and Assigns.
--------------------------------
All the covenants, stipulations, promises and agreements in this
Indenture contained by or on behalf of the Company shall bind successors and
assigns of the Company, whether so expressed or not.
SECTION 14.2. Actions by Successor.
--------------------
Any act or proceeding by any provision of this Indenture
authorized or required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with like force and
effect by the corresponding board, committee or officer of any corporation
that shall at the time be the lawful successor of the Company.
SECTION 14.3. Surrender of Company Powers.
---------------------------
The Company by instrument in writing executed by authority of 2/3
(two-thirds) of the Board of Directors and delivered to the Trustee may
surrender any of the powers reserved to the Company, and thereupon such power
so surrendered shall terminate both as to the Company and as to any successor
corporation.
SECTION 14.4. Notices.
-------
Except as otherwise expressly provided herein, any notice or
demand that by any provision of this Indenture is required or permitted to be
given or served by the Trustee or by the holders of Debt Securities to or on
the Company may be given or served by being deposited first class postage
prepaid in a post office letterbox addressed (until another address is filed
in writing by the Company with the Trustee), as follows: 700 North Adam
Street, P.O. Box 19001, Green Bay, Wisconsin 54307-9001, Attention:
Treasurer. Any notice, election, request or demand by the Company or any
Securityholder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made in writing at
the Corporate Trust Office of the Trustee.
SECTION 14.5. Governing Law.
-------------
This Indenture and each Debt Security shall be deemed to be a
contract made under the internal laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of said State.
SECTION 14.6. Treatment of the Debt Securities as Debt.
----------------------------------------
It is intended that the Debt Securities will be treated as
indebtedness and not as equity for federal income tax purposes. The
provisions of this Indenture shall be interpreted to further this intention.
47
<PAGE>
SECTION 14.7. Compliance Certificates and Opinions.
------------------------------------
(a) Upon any application or demand by the Company to the Trustee
to take any action under any of the provisions of this Indenture, the Company
shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
(b) Each certificate or opinion provided for in this Indenture
and delivered to the Trustee with respect to compliance with a condition or
covenant in this Indenture shall include (1) a statement that the Person
making such certificate or opinion has read such covenant or condition; (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 14.8. Payments on Business Days.
-------------------------
Except as provided pursuant to Section 2.1 pursuant to a Board
Resolution, and as set forth in an Officers' Certificate, or established in
one or more indentures supplemental to this Indenture, in any case where the
date of maturity of interest or principal of any Debt Security or the date of
redemption of any Debt Security shall not be a Business Day, then payment of
interest or principal (and premium, if any) may be made on the next succeeding
Business Day with the same force and effect as if made on the nominal date of
maturity or redemption, and no interest shall accrue for the period after such
nominal date; except that, if such Business Day is in the next succeeding
calendar year, then such payment shall be made on the immediately preceding
Business Day, as if made on the nominal date of maturity or redemption.
SECTION 14.9. Conflict with Trust Indenture Act.
---------------------------------
If and to the extent that any provision of this Indenture 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 14.10. Counterparts.
------------
This Indenture may be executed in any number of counterparts, each
of which shall be an original, but such counterparts shall together constitute
but one and the same instrument.
48
<PAGE>
SECTION 14.11. Separability.
------------
In case any one or more of the provisions contained in this
Indenture or in the Debt Securities of any series 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
Indenture or of such Debt Securities, but this Indenture and such Debt
Securities shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
SECTION 14.12. Assignment.
----------
The Company will have the right at all times to assign any of its
respective rights or obligations under this Indenture to a direct or indirect
wholly-owned Subsidiary of the Company, provided that, in the event of any
-------- ----
such assignment, the Company will remain liable for all such obligations.
Subject to the foregoing, the Indenture is binding upon and inures to the
benefit of the parties thereto and their respective successors and assigns.
This Indenture may not otherwise be assigned by the parties thereto.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed as of the day and year first above written.
WPS RESOURCES CORPORATION
By: /s/ Larry L. Weyers
-------------------------------------
Name: Larry L. Weyers
Title: Chairman, President and
Chief Executive Officer
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity but solely
as Trustee
By: /s/ Paul D. Allen
-------------------------------------
Name: Paul D. Allen
Title: Vice President
49
<PAGE>
STATE OF WISCONSIN )
) SS:
COUNTY OF BROWN )
On the 27th day of July, 1998, before me personally came Larry L.
Weyers to me known, who, being by me duly sworn, did depose and say that he is
the Chairman, President and Chief Executive Officer of WPS RESOURCES
CORPORATION, one of the corporations described in and which executed the above
instrument, and that he signed his name thereto by authority of the Board of
Directors of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal of
office this 27th day of July, 1998.
/s/ Donna M. Sheedy
----------------------------------------
Notary Public
STATE OF WISCONSIN )
) SS:
COUNTY OF MILWAUKEE )
On the 29th day of July, 1998, before me personally came Paul D.
Allen to me known, who, being by me duly sworn, did depose and say that he is
Vice President of STATE STREET BANK AND TRUST COMPANY, one of the corporations
described in and which executed the above instrument, and that he signed his
name thereto by authority of the Board of Directors of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
seal of office this 29th day of July, 1998.
/s/ Lynn N. Daniels
----------------------------------------
Notary Public
50
<PAGE>
EXHIBIT 4.3
===========================================================================
FIRST SUPPLEMENTAL INDENTURE
BETWEEN
WPS RESOURCES CORPORATION
AND
STATE STREET BANK AND TRUST COMPANY
DATED AS OF JULY 30, 1998
===========================================================================
<PAGE>
TABLE OF CONTENTS
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.. . . . . 3
SECTION 2.2 Maturity.. . . . . . . . . . . . . . . . . 3
SECTION 2.3 Denominations, Form and Payment. . . . . . 3
SECTION 2.4 Global Debenture.. . . . . . . . . . . . . 3
SECTION 2.5 Interest.. . . . . . . . . . . . . . . . . 5
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1 Redemption; Conditions to Redemption.. . . 6
SECTION 3.2 No Sinking Fund. . . . . . . . . . . . . . 6
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1 Extension of Interest Payment Period.. . . 7
SECTION 4.2 Notice of Extension. . . . . . . . . . . . 7
ARTICLE V
EXPENSES
SECTION 5.1 Payment of Expenses. . . . . . . . . . . . 8
SECTION 5.2 Payment Upon Resignation or Removal. . . . 9
ARTICLE VI
FORM OF DEBENTURE
SECTION 6.1 Form of Debenture. . . . . . . . . . . . . 9
ARTICLE VII
COVENANT TO LIST ON EXCHANGE
SECTION 7.1 Listing on Exchange. . . . . . . . . . . . 17
ARTICLE VIII
ORIGINAL ISSUE OF DEBENTURES
SECTION 8.1 Original Issue of Debentures.. . . . . . . 17
<PAGE>
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Ratification of Indenture. . . . . . . . . 17
SECTION 9.2 Trustee Not Responsible for Recitals.. . . 17
SECTION 9.3 Governing Law. . . . . . . . . . . . . . . 17
SECTION 9.4 Separability.. . . . . . . . . . . . . . . 18
SECTION 9.5 Counterparts. . . . . . . . . . . . . . . 18
<PAGE>
FIRST SUPPLEMENTAL INDENTURE, dated as of July 30, 1998 (the
"First Supplemental Indenture"), between WPS RESOURCES CORPORATION, a
Wisconsin corporation (the "Company"), and STATE STREET BANK AND TRUST
COMPANY, a Massachusetts trust company, not in its individual capacity but
solely as trustee (the "Trustee") under the Indenture dated as of July 30,
1998 between the Company and the Trustee (the "Indenture").
W I T N E S S E T H:
WHEREAS, the Company executed and delivered the Indenture to the
Trustee to provide for the future issuance of the Company's unsecured junior
subordinated debt securities to be issued from time to time in one or more
series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered
as provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its Debt
Securities to be known as its 7.00% Junior Subordinated Deferrable Interest
Debentures due 2038 (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 First Supplemental Indenture;
WHEREAS, WPSR Capital Trust I, a Delaware statutory business trust
(the "Trust"), has offered to the public $50,000,000 aggregate stated
liquidation amount of its 7.00% Trust Preferred Securities (the "Trust
Preferred Securities") and has offered to the Company $1,500,000 aggregate
stated liquidation amount of its 7.00% Trust Common Securities, such Trust
Preferred Securities and Trust Common Securities representing undivided
beneficial interests in the assets of the Trust and proposes to invest the
proceeds from such offering, in $51,500,000 aggregate principal amount of the
Debentures; and
WHEREAS, the Company has requested that the Trustee execute and
deliver this First Supplemental Indenture and all requirements necessary to
make this First Supplemental Indenture a valid instrument in accordance with
its terms, and to make the Debentures, when executed by the Company and
authenticated and delivered by the Trustee, the valid obligations of the
Company, have been performed, and the execution and delivery of this First
Supplemental Indenture has been duly authorized in all respects;
NOW THEREFORE, in consideration of the purchase and acceptance of
the Debentures by the holders thereof, and for the purpose of setting forth,
as provided in the Indenture, the form and substance of the Debentures and the
terms, provisions and conditions thereof, the Company covenants and agrees
with the Trustee as follows:
<PAGE>
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 First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental Indenture
has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or
Article of this First Supplemental Indenture;
(e) headings are for convenience of reference only and do not
affect interpretation;
(f) the following terms have the meanings given to them in the
Declaration: (i) Administrative Trustee; (ii) Clearing Agency; (iii) Delaware
Trustee; (iv) Distributions; (v) Investment Company Event; (vi) Pricing
Agreement; (vii) Property Trustee; (viii) Tax Event; (ix) Trust Preferred
Security Certificate; and (x) Underwriting Agreement;
(g) the following terms have the meanings given to them in this
Section 1.1(g):
"Additional Interest" shall have the meaning set forth in
Section 2.5.
"Compounded Interest" shall have the meaning set forth in
Section 4.1.
"Coupon Rate" shall have the meaning set forth in Section 2.5.
"Declaration" means the Amended and Restated Declaration of Trust
of WPSR Capital Trust I, a Delaware statutory business trust, dated as of
July 30, 1998, including the Terms of Securities attached thereto as Annex I.
"Deferred Interest" shall have the meaning set forth in
Section 4.1.
"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.
2
<PAGE>
"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.
"Non Book-Entry Trust Preferred Securities" shall have the meaning
set forth in Section 2.4.
"Redemption Price" shall have the meaning set forth in
Section 3.1.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1 Designation and Principal Amount.
--------------------------------
There is hereby authorized a series of Debt Securities designated
the "7.00% Junior Subordinated Deferrable Interest Debentures due 2038",
limited in aggregate principal amount to $51,500,000, which amount shall be as
set forth in any written order of the Company for the authentication and
delivery of Debentures pursuant to Section 2.4 of the Indenture.
SECTION 2.2 Maturity.
--------
The Maturity Date is June 30, 2038.
SECTION 2.3 Denominations, Form and Payment.
-------------------------------
The Debentures shall be issuable in denominations of twenty-five
U.S. Dollars ($25) or any integral multiple thereof. Except as provided in
Section 2.4, the Debentures shall be issued in fully registered certificated
form without interest coupons. Principal and interest on the Debentures issued
in certificated form will be payable, the transfer of such Debentures will be
registrable and such Debentures will be exchangeable for Debentures bearing
identical terms and provisions at the office or agency 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 or by wire transfer to an account appropriately designated
by such holder. 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 Property Trustee will be made at such place and to
such account as may be designated by the Property Trustee.
SECTION 2.4 Global Debenture.
----------------
(a) In the event that the Debentures are distributed to holders
of Trust Preferred Securities in liquidation of such holders' interests in the
Trust:
3
<PAGE>
(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 Depositary, or its nominee, and
delivered by the Trustee to the Depositary for crediting to the accounts
of its participants pursuant to the instructions of the Administrative
Trustees. 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 First Supplemental Indenture. Payments on the
Debentures issued as a Global Debenture will be made to the Depositary;
and
(ii) if any Trust 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 Trust Preferred
Security Certificate which represents Trust Preferred Securities other
than Trust Preferred Securities held by the Clearing Agency or its
nominee ("Non Book-Entry Trust 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 stated liquidation amount of the Non Book-Entry Trust
Preferred Securities until such Trust Preferred Security Certificates
are presented to the Security Registrar for transfer or reissuance, at
which time such Trust Preferred Security Certificates will be cancelled
and a Debenture, registered in the name of the holder of the Trust
Preferred Security Certificate or the transferee of the holder of such
Trust Preferred Security Certificate, as the case may be, with an
aggregate principal amount equal to the aggregate stated liquidation
amount of the Trust Preferred Security Certificate cancelled, will be
executed by the Company and delivered to the Trustee for authentication
and delivery in accordance with the Indenture and this First
Supplemental Indenture. 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 cancelled.
(b) A Global Debenture may be transferred, in whole but not in
part, only to another nominee of the Depositary, or to a successor Depositary
selected or approved by the Company or to a nominee of such successor
Depositary.
(c) If at any time the Depositary notifies the Company that it
is unwilling or unable to continue as Depositary or if at any time the
Depositary shall no longer be registered or in good standing under the
Exchange Act, or other applicable statute or regulation, and a successor
Depositary 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 II of the Indenture, the
Trustee, upon written notice from the Company, will authenticate and deliver
the Debentures in definitive registered form, in authorized denominations, and
in an aggregate principal amount equal to the principal amount of the Global
Debenture in
4
<PAGE>
exchange for such Global Debenture. In addition, the Company may at any time
determine, in its sole discretion, that the Debentures shall no longer be
represented by a Global Debenture. In such event the Company will execute, and
subject to Section 2.11(c) 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 Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Debentures to the Depositary 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 7.00% per
annum (the "Coupon Rate") from the original date of issuance or from the most
recent Interest Payment Date (as hereinafter defined) to which interest has
been paid or duly provided for 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
September 30, 1998, 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 any Debentures
of which the Property Trustee is the holder of a Global Debenture, shall be
the close of business on the Business Day next preceding that Interest Payment
Date. Notwithstanding the foregoing sentence, if the Trust Preferred
Securities are no longer in book-entry only form or if the Debentures are not
held by the Property Trustee and are not represented by a Global Debenture,
the Company may select a regular record date for such interest installment
which shall be any date not less than three 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 calendar quarter for which interest is computed
will be computed on the basis of the actual number of days elapsed per 90-day
period in a 360-day year of twelve 30-day months. 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.
5
<PAGE>
(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 governmental charges been imposed.
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1 Redemption; Conditions to Redemption.
------------------------------------
(a) Subject to the provisions of Article III of the Indenture,
the Company shall have the right to redeem the Debentures, (i) on or after
July 30, 2003, in whole at any time or in part from time to time, or (ii) in
the event that a Tax Event or an Investment Company Event shall occur and be
continuing, then prior to July 30, 2003 in whole (but not in part) within 90
days following the occurrence of such Tax Event or Investment Company Event,
upon not less than 30 nor more than 60 days' prior written notice, at a
redemption price (the "Redemption Price") equal to the principal amount of the
Debentures to be redeemed, plus any accrued and unpaid interest, including
Additional Interest, if any, thereon to the date of such redemption (the
"Redemption Date"); provided, however, that the Company shall not redeem the
-------- -------
Debentures in part unless all accrued but unpaid interest has been paid in
full on all of the Debentures Outstanding for all quarterly interest payment
periods terminating on or prior to the Redemption Date. If the Debentures are
only partially redeemed pursuant to this Section 3.1(a), 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 Depositary shall determine, in accordance with its
procedures, the principal amount of such Debentures held by each holder of
Debentures to be redeemed.
(b) For so long as the Trust is the Holder of all Outstanding
Debentures, the proceeds of any redemption provided for in this Section 3.1
shall be used by the Trust to redeem Trust Preferred Securities in accordance
with their terms.
(c) If a partial redemption of the Debentures would result in
the delisting of the Trust Preferred Securities issued by the Trust from any
national securities exchange or other organization on which the Trust
Preferred Securities are then listed, the Company shall not be permitted to
effect such partial redemption and may only redeem the Debentures in whole.
SECTION 3.2 No Sinking Fund.
---------------
6
<PAGE>
The Subordinated Debentures are not entitled to the benefit of any
sinking fund.
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, to defer payments of interest by
extending the interest payment period of such Debentures for a period not
exceeding 20 consecutive calendar 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 quarterly interest
payment period 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 exceed 20 consecutive calendar quarters or extend beyond the
maturity date of the Debentures. 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 at the end thereof, 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 elects an Extended Interest Payment Period,
the Company shall give written notice to the Administrative Trustees and the
Property Trustee of its election of such Extended Interest Payment Period at
least one Business Day before the earlier of (i) the next succeeding date on
which Distributions on the Trust 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 any
other applicable self-regulatory organization or to holders of the Trust
Preferred Securities, 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 elects an Extended Interest Payment Period,
the Company shall give the holders of
7
<PAGE>
the Debentures and the Trustee written notice of its election of such
Extended Interest Payment Period at least 10 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 any applicable self-regulatory organization or to holders of the
Debentures, but in any event at least two Business Days before such record
date.
(c) The quarterly interest payment period 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 consecutive calendar quarters permitted in the maximum
Extended Interest Payment Period permitted under Section 4.1.
ARTICLE V
EXPENSES
SECTION 5.1 Payment of Expenses.
-------------------
(a) 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:
(1) 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 7.6 of the Indenture;
(2) 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 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); and
(3) 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.
(b) The obligations of the Company under paragraphs (a)(2) and
(a)(3) of this Section 5.1 are for the benefit of, and shall be enforceable
by, any person to whom any such liabilities, costs, expenses, and taxes are
owed (a "Creditor"), whether or not such Creditor has received notice thereof.
Any such Creditor may enforce such obligations of the Company directly
8
<PAGE>
against the Company, and the Company irrevocably waives any right or remedy to
require that any such Creditor take any action against the Trust or any other
person before proceeding against the Company. The Company shall execute such
additional agreements as may be necessary or desirable to give full effect to
the provisions of this Section 5.1(b).
SECTION 5.2 Payment Upon Resignation or Removal.
-----------------------------------
Upon termination of this First Supplemental Indenture or the
Indenture or the removal or resignation of the Trustee pursuant to Section
7.10 of the Indenture, the Company shall pay to the Trustee all amounts
accrued and owing to the Trustee to the date of such termination, removal or
resignation. Upon termination of the Declaration or the removal or resignation
of the Delaware Trustee or the Property Trustee, as the case may be, pursuant
to Section 5.6 of the Declaration, the Company shall pay to the Delaware
Trustee or Property Trustee, as applicable, all amounts accrued and owing to
such Trustee to the date of such termination, removal or resignation.
ARTICLE VI
FORM OF DEBENTURE
SECTION 6.1 Form of Debenture.
-----------------
The Debentures and the Trustee's Certificate of Authentication to
be endorsed thereon are to be substantially in the following forms:
(FORM OF FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT - This
Debenture is a Global Debenture within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary. This Debenture is exchangeable for Debentures
registered in the name of a person other than the Depositary or its nominee
only in the limited circumstances described in the Indenture, and no transfer
of this Debenture (other than a transfer of this Debenture as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary) may be registered except
in limited circumstances.
Unless this Debenture is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York, New York) to the
issuer or its agent for registration of transfer, exchange or payment, and any
Debenture 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 since the registered
owner hereof, Cede & Co., has an interest herein.]
9
<PAGE>
No.
----------------------------
WPS RESOURCES CORPORATION
7.00% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE
DUE 2038
WPS Resources Corporation, a Wisconsin corporation (the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to , or
--------------
registered assigns, the principal sum of $ on June 30, 2038, and to
-----------
pay interest on said principal sum from July 30, 1998 or from the most recent
interest payment date (each such date, an "Interest Payment Date") to which
interest has been paid or duly provided for, quarterly (subject to deferral as
set forth herein) in arrears on March 31, June 30, September 30 and December
31 of each year commencing , 199 , at the rate of 7.00% per annum
-------- -
until the principal hereof shall have become due and payable, plus Additional
Interest, if any, and on any overdue principal and (without duplication and to
the extent that payment of such interest is enforceable under applicable law)
on any overdue installment of interest at the same rate per annum compounded
quarterly. The amount of interest payable on any Interest Payment Date shall
be computed on the basis of a 360-day year of twelve 30-day months. The amount
of interest payable for any period shorter than a full quarterly interest
payment period for which interest is computed will be computed on the basis of
actual number of days elapsed in a 360-day year of twelve 30-day months. In
the event that any date on which interest is payable on this Debenture is not
a Business Day, then payment of interest 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
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. The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the person in whose name this Debenture
(or one or more Predecessor Securities, as defined in said Indenture) is
registered at the close of business on the regular record date for such
interest installment, which shall be the close of business on the business day
next preceding such Interest Payment Date. [IF THE TRUST PREFERRED SECURITIES
ARE NO LONGER REPRESENTED BY A GLOBAL CERTIFICATE OR IF THE DEBENTURES ARE NOT
HELD BY THE PROPERTY TRUSTEE AND ARE NOT REPRESENTED BY A GLOBAL DEBENTURE --
which shall be the close of business on [insert regular record date selected
by the Company in accordance with Section 2.5].] Any such interest installment
not punctually paid or duly provided for shall forthwith cease to be payable
to the registered holders on such regular record date and may be paid to the
Person in whose name this Debenture (or one or more Predecessor Securities) is
registered at the close of business on a special record date to be fixed by
the Trustee for the payment of such defaulted interest, notice of which shall
be given to the registered holders of this series of Debentures not less than
10 days prior to such special record date, or may be paid at any time in any
other lawful manner not inconsistent with the requirements
10
<PAGE>
of any securities exchange on which the Debentures may be listed, and upon
such notice as may be required by such exchange, all as more fully provided in
the Indenture. The principal of (and premium, if any) and the interest on this
Debenture shall be payable at the office or agency of the Trustee maintained
for that purpose in any coin or currency of the United States of America that
at the time of payment is legal tender for payment of public and private
debts; provided, however, that payment of interest may be made at the option
of the Company by check mailed to the registered holder at such address as
shall appear in the Security Register or by wire transfer to an account
appropriately designated by such holder. Notwithstanding the foregoing, so
long as the holder of this Debenture is the Property Trustee, the payment of
the principal of and interest on this Debenture will be made at such place and
to such account as may be designated by the Property Trustee.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness of the Company, and this
Debenture is issued subject to the provisions of the Indenture with respect
thereto. Each holder of this Debenture, by accepting the same, (a) agrees to
and shall be bound by such provisions, (b) authorizes and directs the Trustee
on his or her behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination so provided, and (c) appoints the
Trustee his or her attorney-in-fact for any and all such purposes. Each holder
hereof, by his or her acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Indebtedness of the Company, whether now
outstanding or hereafter incurred, and waives reliance by each such holder
upon said provisions.
11
<PAGE>
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any
purpose until the Certificate of Authentication hereon shall have been signed
by or on behalf of the Trustee.
The provisions of this Debenture are continued on the reverse side
hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
Dated
----------------------------
WPS RESOURCES CORPORATION
By:
-------------------------------
Name:
Title:
Attest:
By:
-----------------------------
Name:
Title:
12
<PAGE>
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of Debentures
described in the within-mentioned Indenture.
STATE STREET BANK AND TRUST COMPANY or
-------------------------------
as Trustee as Authenticating Agent
By By
------------------------------- -------------------------------
Authorized Signatory Authorized Signatory
13
<PAGE>
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Debentures of
the Company (herein sometimes referred to as the "Debentures"), specified in
the Indenture, all issued or to be issued in one or more series under and
pursuant to an Indenture dated as of July 30, 1998, duly executed and
delivered between the Company and State Street Bank and Trust Company, as
Trustee (the "Trustee"), as supplemented by the First Supplemented Indenture
dated as of July 30, 1998, between the Company and the Trustee (the Indenture
as so supplemented, the "Indenture"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the holders of the Debentures. By the terms of the
Indenture, the Debentures are issuable in series that may vary as to amount,
date of maturity, rate of interest and in other respects as provided in the
Indenture. This series of Debentures is limited in aggregate principal amount
as specified in said First Supplemental Indenture.
Subject to the provisions of Article III of the Indenture, the
Company has the right to redeem this Debenture (i) on or after July 30, 2003,
in whole at any time or in part from time to time, or (ii) in the event that a
Tax Event or Investment Company Event (as defined in the First Supplemental
Indenture) shall occur and be continuing, then prior to July 30, 2003, in
whole (but not in part) within 90 days following the occurrence of such Tax
Event or Investment Company Event upon not less than 30 nor more than 60 days'
prior written notice, at a redemption price (the "Redemption Price"), equal to
the principal amount of the Debentures to be redeemed plus any accrued and
unpaid interest, including Additional Interest, if any, thereon to the date of
such redemption (the "Redemption Date"); provided, however, that the Company
-------- -------
shall not redeem the Debentures in part unless all accrued but unpaid interest
has been paid in full on all of the Debentures for all quarterly interest
payment periods terminating on or prior to the Redemption Date.
If the Debentures are only partially redeemed by the Company, 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 Depositary shall determine the
principal amount of such Debentures held by each holder to be redeemed in
accordance with its procedures.
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures of this series for the unredeemed portion hereof will
be issued in the name of the holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall
have occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become immediately due and payable,
in the manner, with the effect and subject to the conditions provided in the
Indenture.
14
<PAGE>
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the Debentures of each series affected at the
time Outstanding, as defined in the Indenture, to execute supplemental
indentures for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or of modifying in any manner the rights of the holders
of the Debentures; provided, however, that no such supplemental indenture
shall (i) extend the fixed maturity of any Debentures of any series, or reduce
the principal amount thereof, or reduce the rate or extend the time of payment
of interest thereon, or reduce any premium payable upon the redemption
thereof, without the consent of the holder of each Debenture so affected, or
(ii) reduce the aforesaid percentage of Debentures, the holders of which are
required to consent to any such supplemental indenture, without the consent of
the holders of each Debenture then Outstanding and affected thereby. The
Indenture also contains provisions permitting the holders of a majority in
aggregate principal amount of the Debentures of any series at the time
Outstanding affected thereby, on behalf of all of the holders of the
Debentures of such series, to waive any past default in the performance of any
of the covenants contained in the Indenture, or established pursuant to the
Indenture with respect to such series, and its consequences, except a default
in the payment of the principal of or premium, if any, or interest on any of
the Debentures of such series. Any such consent or waiver by the registered
holder of this Debenture (unless revoked as provided in the Indenture) shall
be conclusive and binding upon such holder and upon all future holders and
owners of this Debenture and of any Debenture issued in exchange herefor or in
place hereof (whether by registration of transfer or otherwise), irrespective
of whether or not any notation of such consent or waiver is made upon this
Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Debenture at the time and place and at
the rate and in the money herein prescribed.
The Company shall have the right at any time during the term of
the Debentures and from time to time to extend the interest payment period of
such Debentures for up to 20 consecutive calendar quarters (an "Extended
Interest Payment Period"), at the end of which period the Company shall pay
all interest then accrued and unpaid (together with interest thereon at the
rate specified for the Debentures to the extent that payment of such interest
is enforceable under applicable law); provided that no Extended Interest
Payment Date may extend beyond the maturity date of the Debentures. Before the
termination of any such Extended Interest Payment Period, the Company may
further extend such Extended Interest Payment Period, provided that such
Extended Interest Payment Period together with all such further extensions
thereof shall not exceed 20 consecutive calendar quarters. At the termination
of any such Extended Interest Payment Period and upon the payment of all
accrued and unpaid interest and any additional amounts then due, the Company
may commence a new Extended Interest Payment Period.
As provided in the Indenture and subject to certain limitations
therein set forth, this Debenture is transferable by the registered holder
hereof on the Security Register of the Company,
15
<PAGE>
upon surrender of this Debenture for registration of transfer at the Corporate
Trust Office of the Trustee or such other location designated by the Company
pursuant to the Indenture accompanied by a written instrument or instruments
of transfer in form satisfactory to the Company or the Trustee duly executed
by the registered holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Debentures of authorized denominations and for
the same aggregate principal amount and series will be issued to the
designated transferee or transferees. No service charge will be made for any
such transfer, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any paying agent and the Security
Registrar may deem and treat the registered holder hereof as the absolute
owner hereof (whether or not this Debenture shall be overdue and
notwithstanding any notice of ownership or writing hereon made by anyone other
than the Security Registrar) for the purpose of receiving payment of or on
account of the principal hereof and premium, if any, and interest due hereon
and for all other purposes, and neither the Company nor the Trustee nor any
paying agent nor any Security Registrar shall be affected by any notice to the
contrary.
No recourse shall be had for the payment of the principal of or
the interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, shareholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance hereof,
expressly waived and released.
The Debentures of this series are issuable only in registered form
without coupons in denominations of $25 and any integral multiple thereof.
[This Global Debenture is exchangeable for Debentures in definitive form only
under certain limited circumstances set forth in the Indenture. Debentures of
this series so issued are issuable only in registered form without coupons in
denominations of $25 and any integral multiple thereof.] As provided in the
Indenture and subject to certain limitations herein and therein set forth,
Debentures of this series so issued are exchangeable for a like aggregate
principal amount of Debentures of this series of a different authorized
denomination, as requested by the holder surrendering the same.
All terms used in this Debenture that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
16
<PAGE>
ARTICLE VII
COVENANT TO LIST ON EXCHANGE
SECTION 7.1 Listing on Exchange.
-------------------
If the Debentures are to be issued as a Global Security in
connection with the distribution of the Debentures to the Holders of the Trust
Preferred Securities issued by the Trust upon the dissolution of the Trust,
the Company will use its best efforts to list such Debentures on the New York
Stock Exchange or on such other exchange on which the Trust Preferred
Securities are then listed.
ARTICLE VIII
ORIGINAL ISSUE OF DEBENTURES
SECTION 8.1 Original Issue of Debentures.
----------------------------
Debentures in the aggregate principal amount of $51,500,000 may,
upon execution of this First Supplemental Indenture, 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, President, or any Vice President
and its Treasurer or an Assistant Treasurer, without any further action by the
Company.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Ratification of Indenture.
-------------------------
The Indenture, as supplemented by this First Supplemental
Indenture, is in all respects ratified and confirmed, and this First
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
SECTION 9.2 Trustee Not Responsible for Recitals.
------------------------------------
The recitals herein contained are made by the Company and not by
the Trustee, and the Trustee assumes no responsibility for the correctness
thereof. The Trustee makes no representation as to the validity or sufficiency
of this First Supplemental Indenture.
SECTION 9.3 Governing Law.
-------------
This First Supplemental Indenture and each Debenture shall be
deemed to be a contract made under the internal laws of the State of New York,
and for all purposes shall be construed in accordance with the laws of said
State.
17
<PAGE>
SECTION 9.4 Separability.
------------
In case any one or more of the provisions contained in this First
Supplemental Indenture 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 First
Supplemental Indenture or of the Debentures, but this First Supplemental
Indenture and the Debentures shall be construed as if such invalid or illegal
or unenforceable provision had never been contained herein or therein.
SECTION 9.5 Counterparts.
------------
This First Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed on the date or dates indicated in
the acknowledgments and as of the day and year first above written.
WPS RESOURCES CORPORATION
By: /s/ Larry L. Weyers
--------------------------------
Name: Larry L. Weyers
--------------------------------
Title: Chairman, President and
--------------------------------
Chief Executive Officer
--------------------------------
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity
but solely as Trustee
By: /s/ Paul D. Allen
-----------------
Name: Paul D. Allen
Title: Vice President
18
<PAGE>
STATE OF WISCONSIN )
) SS:
COUNTY OF BROWN )
On the 27th day of July, 1998, before me personally came
Larry L. Weyers to me known, who, being by me duly sworn, did depose and say
that he is the Chairman, President and Chief Executive Officer of
WPS RESOURCES CORPORATION, one of the corporations described in and which
executed the above instrument, and that he signed his name thereto by
authority of the Board of Directors of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
seal of office this 27th day of July, 1998.
/s/ Donna M. Sheedy
----------------------------------------
Notary Public
STATE OF WISCONSIN )
) SS:
COUNTY OF MILWAUKEE )
On the 29th day of July, 1998, before me personally came
Paul D. Allen to me known, who, being by me duly sworn, did depose and say
he is Vice President of STATE STREET BANK AND TRUST COMPANY, one of the
corporations described in and which executed the above instrument, and that he
signed his name thereto by authority of the Board of Directors of said
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
seal of office this 29th day of July, 1998.
/s/ Lynn N. Daniels
----------------------------------------
Notary Public
19
<PAGE>
EXHIBIT 4.4
=============================================================================
TRUST PREFERRED SECURITIES GUARANTEE AGREEMENT
WPS RESOURCES CORPORATION
DATED AS OF JULY 30, 1998
=============================================================================
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation. . . . . . . . . . . . . . 2
ARTICLE II TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application. . . . . . . . . . . . . 5
SECTION 2.2 Lists of Holders of Securities. . . . . . . . . . . . . . 5
SECTION 2.3 Reports by the Trust Preferred Guarantee Trustee . . . . 6
SECTION 2.4 Periodic Reports to Trust Preferred 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. . . . . . . . . . . . . . . . . 7
SECTION 2.8 Conflicting Interests . . . . . . . . . . . . . . . . . . 7
ARTICLE III POWERS, DUTIES AND RIGHTS OF TRUST PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Trust Preferred Guarantee
Trustee. . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 3.2 Certain Rights of Trust Preferred Guarantee Trustee . . . 9
SECTION 3.3 Not Responsible for Recitals or Issuance of Guarantee . . 11
ARTICLE IV TRUST PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Trust Preferred Guarantee Trustee; Eligibility. . . . . . 11
SECTION 4.2 Appointment, Removal and Resignation of Trust
Preferred Guarantee Trustee . . . . . . . . . . . . . . . 12
SECTION 4.3 Compensation and Reimbursement of Expenses of Trust
Preferred Guarantee Trustee . . . . . . . . . . . . . . . 13
ARTICLE V GUARANTEE
SECTION 5.1 Guarantee . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 5.2 Waiver of Notice and Demand . . . . . . . . . . . . . . . 13
SECTION 5.3 Obligations Not Affected. . . . . . . . . . . . . . . . . 13
SECTION 5.4 Rights of Holders . . . . . . . . . . . . . . . . . . . . 14
SECTION 5.5 Guarantee of Payment. . . . . . . . . . . . . . . . . . . 15
SECTION 5.6 Subrogation . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5.7 Independent Obligations . . . . . . . . . . . . . . . . . 15
i
<PAGE>
ARTICLE VI LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions. . . . . . . . . . . . . . . . 16
SECTION 6.2 Ranking . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE VII TERMINATION
SECTION 7.1 Termination . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE VIII INDEMNIFICATION
SECTION 8.1 Exculpation . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 8.2 Indemnification . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE IX MISCELLANEOUS
SECTION 9.1 Successors and Assigns. . . . . . . . . . . . . . . . . . 18
SECTION 9.2 Amendments. . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 9.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 9.4 Benefit . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 9.5 Governing Law . . . . . . . . . . . . . . . . . . . . . . 19
ii
<PAGE>
CROSS-REFERENCE TABLE
FOR THE TRUST PREFERRED SECURITIES GUARANTEE AGREEMENT
SECTION OF SECTION OF
TRUST INDENTURE GUARANTEE
OF 1939, AS AMENDED AGREEMENT
- ------------------- ----------
310(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1(a)
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1(c), 2.8
310(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(a)
311(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
311(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
313. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4
314(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
314(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5
314(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5, 3.2
314(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1, 3.2
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1(d)
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.7
315(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1
315(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1(d)
316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4(a), 2.6
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3
316(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(b)
318(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1
319(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(a)
Note: This Cross-Reference Table shall not, for any purpose, be deemed to
be a part of the Guarantee Agreement and shall not have any bearing
on the interpretation of its terms or provisions.
iii
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TRUST PREFERRED SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Trust Preferred Securities
Guarantee"), dated as of July 30, 1998, is executed and delivered by WPS
Resources Corporation, a Wisconsin corporation (the "Guarantor"), and State
Street Bank and Trust Company, a Massachusetts trust company, not in its
individual capacity but solely as trustee (the "Trust Preferred Guarantee
Trustee"), for the benefit of the Holders (as defined herein) from time to
time of the Trust Preferred Securities (as defined herein) of WPSR Capital
Trust I, a Delaware statutory business trust (the "Issuer").
W I T N E S S E T H:
WHEREAS, pursuant to an Amended and Restated Declaration of Trust
(the "Declaration"), dated as of July 30, 1998, among the trustees of the
Issuer named therein, the Guarantor, as sponsor, and the holders from time to
time of undivided beneficial interests in the assets of the Issuer, the Issuer
is issuing on the date hereof 2,000,000 preferred securities, having an
aggregate liquidation amount of $50,000,000, designated the 7.00 % Trust
Preferred Securities (the "Trust Preferred Securities");
WHEREAS, as incentive for the Holders to purchase the Trust
Preferred Securities, the Guarantor desires irrevocably and unconditionally to
agree, to the extent set forth in this Trust Preferred Securities Guarantee,
to pay to the Holders of the Trust Preferred Securities the Guarantee Payments
(as defined herein) and to make certain other payments on the terms and
conditions set forth herein; and
WHEREAS, the Guarantor is also executing and delivering a guaranty
agreement (the "Trust Common Securities Guarantee") in substantially identical
terms to this Trust Preferred Securities Guarantee for the benefit of the
holders of the Trust Common Securities (as defined herein), except that if an
Event of Default (as defined in the Indenture), has occurred and is
continuing, the rights of holders of the Trust Common Securities to receive
Guarantee Payments under the Trust Common Securities Guarantee are
subordinated to the rights of Holders of Trust Preferred Securities to receive
Guarantee Payments under this Trust Preferred Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Trust Preferred Securities, which purchase the Guarantor hereby agrees shall
benefit the Guarantor, the Guarantor executes and delivers this Trust
Preferred Securities Guarantee for the benefit of the Holders.
<PAGE>
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation.
------------------------------
In this Trust Preferred Securities Guarantee, unless the context
otherwise requires:
(a) capitalized terms used in this Trust Preferred Securities
Guarantee but not defined in the preamble above have the respective meanings
assigned to them in this Section 1.1;
(b) a term defined anywhere in this Trust Preferred Securities
Guarantee has the same meaning throughout;
(c) all references to "the Trust Preferred Securities Guarantee"
or "this Trust Preferred Securities Guarantee" are to this Trust Preferred
Securities Guarantee as modified, supplemented or amended from time to time;
(d) all references in this Trust Preferred Securities Guarantee
to Articles and Sections are to Articles and Sections of this Trust Preferred
Securities Guarantee, unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Trust Preferred Securities Guarantee, unless
otherwise defined in this Trust Preferred Securities Guarantee or unless the
context otherwise requires; and
(f) a reference to the singular includes the plural and vice
versa.
"Affiliate" has the same meaning as given to that term in Rule 405
of the Securities Act of 1933, as amended, or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is
authorized to bind such Person.
"Business Day" means any day other than a day on which state or
federal banking institutions in New York, New York, or Boston, Massachusetts,
are authorized or required by law to close.
"Corporate Trust Office" means the office of the Trust Preferred
Guarantee Trustee at which the corporate trust business of the Trust Preferred
Guarantee Trustee shall, at any particular time, be principally administered,
which office at the date of execution of this Agreement is located at
2 International Place, 4th Floor, Boston, Massachusetts.
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"Covered Person" means any Holder or beneficial owner of Trust
Preferred Securities.
"Debentures" means the series of junior subordinated debt
securities of the Guarantor designated the 7.00% Junior Subordinated
Deferrable Interest Debentures due 2038 held by the Property Trustee (as
defined in the Declaration) of the Issuer.
"Direction" by a Person means a written direction signed: (a) if
the Person is a natural person, by that Person; or (b) in any other case, in
the name of such person by one or more Authorized Officers of that Person.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Trust Preferred Securities Guarantee.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Trust Preferred
Securities, to the extent not paid or made by the Issuer: (i) any accrued and
unpaid Distributions (as defined in the Declaration) that are required to be
paid on such Trust Preferred Securities, to the extent the Issuer shall have
funds available therefor, (ii) the redemption price, including all accrued and
unpaid Distributions to the date of redemption (the "Redemption Price") to the
extent the Issuer has funds available therefor, with respect to any Trust
Preferred Securities called for redemption by the Issuer, and (iii) upon a
voluntary or involuntary dissolution, liquidation, winding-up or termination
of the Issuer (other than in connection with the distribution of Debentures
to the Holders in exchange for Trust Preferred Securities as provided in the
Declaration or the redemption of all of the Trust Preferred Securities upon
maturity or redemption of Debentures), the lesser of (a) the aggregate of the
liquidation amount and all accrued and unpaid Distributions on the Trust
Preferred Securities to the date of payment, to the extent the Issuer shall
have funds available therefor, 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"). If an event of default under
the Indenture has occurred and is continuing, the rights of holders of the
Trust Common Securities to receive payments under the Trust Common Securities
Guarantee Agreement are subordinated to the rights of Holders of Trust
Preferred Securities to receive Guarantee Payments.
"Holder" shall mean any holder, as registered in the books and
records of the Issuer, of any Trust Preferred Securities; provided however,
that, in determining whether the holders of the requisite percentage of Trust
Preferred Securities have given any request, notice, consent or waiver
hereunder, "Holder" shall not include the Guarantor or any Affiliate of the
Guarantor; and provided further, that in determining whether the Holders of
the requisite liquidation amount of Trust Preferred Securities have voted on
any matter provided for in this Trust Preferred Securities Guarantee, then for
the purpose of such determination only (and not for any other purpose
hereunder) if the Trust Preferred Securities remain in the form of one or more
Global Certificates (as defined in the Declaration), the term "Holders" shall
mean the holder of
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<PAGE>
the Global Certificate acting at the direction of the Trust Preferred Security
Beneficial Owners (as defined in the Declaration).
"Indemnified Person" means the Trust Preferred Guarantee Trustee,
any Affiliate of the Trust Preferred Guarantee Trustee, or any officers,
directors, shareholders, members, partners, employees, representatives,
nominees, custodians or agents of the Trust Preferred Guarantee Trustee.
"Indenture" means the Indenture dated as of July 30, 1998 between
the Guarantor (the "Debenture Issuer") and State Street Bank and Trust
Company, as trustee, and any indenture supplemental thereto pursuant to which
certain subordinated debt securities of the Debenture Issuer are to be issued
to the Property Trustee of the Issuer.
"Majority in liquidation amount of the Trust Preferred Securities"
means, except as provided in the terms of the Trust Preferred Securities or by
the Trust Indenture Act, a vote by Holder(s) of Trust Preferred Securities,
voting separately as a class, of more than 50% of the liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all Trust Preferred Securities.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Trust Preferred Securities Guarantee shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definition
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.
"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.
4
<PAGE>
"Responsible Officer" means, with respect to the Trust Preferred
Guarantee Trustee, the chairman of the board of directors, president, any
vice-president, any assistant vice-president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, any trust officer or other
officer of the Trust Preferred Guarantee Trustee customarily performing
functions similar to those performed by any of the above designated officers
and also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
"Successor Trust Preferred Guarantee Trustee" means a successor
Trust Preferred Guarantee Trustee possessing the qualifications to act as
Trust Preferred Guarantee Trustee under Section 4.1.
"Trust Common Securities" means the securities representing common
undivided beneficial interests in the assets of the Issuer.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Trust Preferred Guarantee Trustee" means State Street Bank and
Trust Company until a Successor Trust Preferred Guarantee Trustee had been
appointed and has accepted such appointment pursuant to the terms of this
Trust Preferred Securities Guarantee and thereafter means each such Successor
Trust Preferred Guarantee Trustee.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
--------------------------------
(a) This Trust Preferred Securities Guarantee is subject to the
provisions of the Trust Indenture Act that are required to be part of this
Trust Preferred Securities Guarantee and shall, to the extent applicable, be
governed by such provisions; and
(b) If and to the extent that any provision of this Trust
Preferred Securities Guarantee 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 Lists of Holders of Securities.
------------------------------
(a) The Guarantor shall provide the Trust Preferred Guarantee
Trustee with a list, in such form as the Trust Preferred Guarantee Trustee may
reasonably require, of the names and addresses of the Holders of the Trust
Preferred Securities ("List of Holders") as of such date, (i) within fourteen
(14) days after January 1 and June 30 of each year, and (ii) at any other time
within 30 days of receipt by the Guarantor of a written request for a List of
Holders as of a date no more than fourteen (14) days before such List of
Holders is given to the Trust Preferred
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Guarantee Trustee; provided, that the Guarantor shall not be obligated to
provide such List of Holders at any time the List of Holders does not differ
from the most recent List of Holders given to the Trust Preferred Guarantee
Trustee by the Guarantor. The Trust Preferred Guarantee Trustee may destroy
any List of Holders previously given to it on receipt of a new List of
Holders.
(b) The Trust Preferred Guarantee Trustee shall comply with its
obligations under Sections 311(a), 311(b) and 312(b) of the Trust Indenture
Act.
SECTION 2.3 Reports by the Trust Preferred Guarantee Trustee
------------------------------------------------
On or before July 15 of each year, the Trust Preferred Guarantee
Trustee shall provide to the Holders of the Trust Preferred Securities such
reports as are required by Section 313 of the Trust Indenture Act. The Trust
Preferred Guarantee Trustee shall also comply with the requirements of Section
313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Trust Preferred Guarantee Trustee
-----------------------------------------------------
The Guarantor shall provide to the Trust Preferred Guarantee
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 of the Trust Indenture Act in the form, in the manner and at the
times required by Section 314 of the Trust Indenture Act. Delivery of such
reports, information and documents to the Trust Preferred Guarantee Trustee is
for informational purposes only and the Trust Preferred Guarantee Trustee's
receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein,
including the Guarantor's compliance with any of its covenants hereunder (as
to which the Trust Preferred Guarantee Trustee is entitled to rely exclusively
on officers' certificates).
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
------------------------------------------------
The Guarantor shall provide to the Trust Preferred Guarantee
Trustee such evidence of compliance with such conditions precedent, if any,
provided for in this Trust Preferred Securities Guarantee 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 may be given in the form of an Officers'
Certificate.
SECTION 2.6 Events of Default; Waiver.
-------------------------
The Holders of a Majority in liquidation amount of the Trust
Preferred Securities may, by vote, on behalf of the Holders of all of the
Trust Preferred Securities, 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
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<PAGE>
purpose of this Trust Preferred Securities Guarantee, but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any
right consequent thereon.
SECTION 2.7 Event of Default; Notice.
------------------------
(a) The Trust Preferred Guarantee Trustee shall, within 90 days
after a Responsible Officer has knowledge of the occurrence of an Event of
Default, transmit by mail, first class postage prepaid, to the Holders of the
Trust Preferred Securities, notices of all Events of Default actually known to
a Responsible Officer of the Trust Preferred Guarantee Trustee, unless such
defaults have been cured before the giving of such notice, provided, that, the
Trust Preferred Guarantee Trustee shall be protected in withholding such
notice if and so long as a Responsible Officer of the Trust Preferred
Guarantee Trustee in good faith determines that the withholding of such notice
is in the interests of the Holders of the Trust Preferred Securities.
(b) The Trust Preferred Guarantee Trustee shall not be deemed to
have knowledge of any Event of Default unless the Trust Preferred Guarantee
Trustee shall have received written notice, or a Responsible Officer of the
Trust Preferred Guarantee Trustee charged with the administration of the
Declaration shall have obtained actual knowledge, of such Event of Default.
SECTION 2.8 Conflicting Interests.
---------------------
The Declaration shall be deemed to be specifically described in
this Trust Preferred Securities Guarantee 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
TRUST PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Trust Preferred Guarantee Trustee.
----------------------------------------------------------
(a) This Trust Preferred Securities Guarantee shall be held by
the Trust Preferred Guarantee Trustee for the benefit of the Holders of the
Trust Preferred Securities, and the Trust Preferred Guarantee Trustee shall
not transfer this Trust Preferred Securities Guarantee to any Person except a
Holder of Trust Preferred Securities exercising his or her rights pursuant to
Section 5.4(b) or to a Successor Trust Preferred Guarantee Trustee on
acceptance by such Successor Trust Preferred Guarantee Trustee of its
appointment to act as Successor Trust Preferred Guarantee Trustee. The right,
title and interest of the Trust Preferred Guarantee Trustee shall
automatically vest in any Successor Trust Preferred Guarantee Trustee, 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 Trust Preferred Guarantee Trustee.
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<PAGE>
(b) If an Event of Default actually known to a Responsible
Officer of the Trust Preferred Guarantee Trustee has occurred and is
continuing, the Trust Preferred Guarantee Trustee shall enforce this Trust
Preferred Securities Guarantee for the benefit of the Holders of the Trust
Preferred Securities.
(c) The Trust Preferred Guarantee Trustee, before the occurrence
of any Event of Default and after the curing of all Events of Default that may
have occurred, shall undertake to perform only such duties as are specifically
set forth in this Trust Preferred Securities Guarantee, and no implied
covenants shall be read into this Trust Preferred Securities Guarantee against
the Trust Preferred Guarantee Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.6) and is
actually known to a Responsible Officer of the Trust Preferred Guarantee
Trustee, the Trust Preferred Guarantee Trustee shall exercise such of the
rights and powers vested in it by this Trust Preferred Securities Guarantee
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 Trust Preferred Securities Guarantee
shall be construed to relieve the Trust Preferred Guarantee Trustee from
liability for its own negligent action, its own negligent failure to act, or
its own willful misconduct, except that:
(i) prior to the occurrence of 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 Trust Preferred
Guarantee Trustee shall be determined solely by the express
provisions of this Trust Preferred Securities Guarantee, and the
Trust Preferred Guarantee Trustee shall not be liable except for
the performance of such duties and obligations as are specifically
set forth in this Trust Preferred Securities Guarantee, and no
implied covenants or obligations shall be read into this Trust
Preferred Securities Guarantee against the Trust Preferred
Guarantee Trustee; and
(B) in the absence of bad faith on the part of the Trust
Preferred Guarantee Trustee, the Trust Preferred 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 Trust Preferred
Guarantee Trustee and conforming to the requirements of this Trust
Preferred Securities Guarantee; but in the case of any such
certificates or opinions that by any provision hereof are
specifically required to be furnished to the Trust Preferred
Guarantee Trustee, the Trust Preferred Guarantee Trustee shall be
under a duty to examine the same to determine whether or not they
conform to the requirements of this Trust Preferred Securities
Guarantee;
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<PAGE>
(ii) the Trust Preferred Guarantee Trustee shall not be liable
for any error of judgment made in good faith by a Responsible Officer of
the Trust Preferred Guarantee Trustee, unless it shall be proved that
the Trust Preferred Guarantee Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) the Trust Preferred 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 amount of the Trust Preferred Securities
relating to the time, method and place of conducting any proceeding for
any remedy available to the Trust Preferred Guarantee Trustee, or
exercising any trust or power conferred upon the Trust Preferred
Guarantee Trustee under this Trust Preferred Securities Guarantee; and
(iv) no provision of this Trust Preferred Securities Guarantee
shall require the Trust Preferred 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 Trust Preferred 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 Trust
Preferred Securities Guarantee or indemnity, reasonably satisfactory to
the Trust Preferred Guarantee Trustee, against such risk or liability is
not reasonably assured to it.
SECTION 3.2 Certain Rights of Trust Preferred Guarantee Trustee.
---------------------------------------------------
(a) Subject to the provisions of Section 3.1:
(i) The Trust Preferred Guarantee Trustee may conclusively 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 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
Trust Preferred Securities Guarantee shall be sufficiently evidenced by
a Direction or an Officers' Certificate.
(iii) Whenever, in the administration of this Trust Preferred
Securities Guarantee, the Trust Preferred Guarantee Trustee shall deem
it desirable that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Trust Preferred
Guarantee Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
conclusively rely upon an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Guarantor.
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<PAGE>
(iv) The Trust Preferred Guarantee Trustee shall have no duty to
see to any recording, filing or registration of any instrument (or any
rerecording, refiling or registration thereof).
(v) The Trust Preferred Guarantee Trustee may consult with
counsel, and the written advice or opinion of such counsel with respect
to legal matters 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 accordance with such advice or opinion. Such counsel
may be counsel to the Guarantor or any of its Affiliates and may include
any of its employees. The Trust Preferred Guarantee Trustee shall have
the right at any time to seek instructions concerning the administration
of this Trust Preferred Securities Guarantee from any court of competent
jurisdiction.
(vi) The Trust Preferred Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Trust Preferred Securities Guarantee at the request or direction of any
Holder, unless such Holder shall have provided to the Trust Preferred
Guarantee Trustee such security and indemnity, reasonably satisfactory
to the Trust Preferred Guarantee Trustee, against the costs, expenses
(including attorneys' fees and expenses and the expenses of the Trust
Preferred Guarantee Trustee's agents, nominees or custodians) 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 Trust Preferred Guarantee Trustee; provided that, nothing contained
in this Section 3.2(a)(vi) shall be taken to relieve the Trust Preferred
Guarantee Trustee, upon the occurrence of an Event of Default, of its
obligation to exercise the rights and powers vested in it by this Trust
Preferred Securities Guarantee.
(vii) The Trust Preferred 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 Trust
Preferred Guarantee Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit.
(viii) The Trust Preferred Guarantee Trustee may execute any
of the trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents, nominees, custodians or attorneys, and
the Trust Preferred Guarantee Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder.
(ix) Any action taken by the Trust Preferred Guarantee Trustee or
its agents hereunder shall bind the Holders of the Trust Preferred
Securities, and the signature of the Trust Preferred Guarantee Trustee
or its agents alone shall be sufficient and effective to perform any
such action. No third party shall be required to inquire as to the
authority of
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<PAGE>
the Trust Preferred Guarantee Trustee to so act or as to its compliance
with any of the terms and provisions of this Trust Preferred Securities
Guarantee, both of which shall be conclusively evidenced by the Trust
Preferred Guarantee Trustee's or its agent's taking such action.
(x) Whenever in the administration of this Trust Preferred
Securities Guarantee the Trust Preferred Guarantee Trustee shall deem it
desirable to receive instructions with respect to enforcing any remedy
or right or taking any other action hereunder, the Trust Preferred
Guarantee Trustee (i) may request instructions from the Holders of a
Majority in liquidation amount of the Trust Preferred Securities, (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 conclusively relying on or acting in accordance with such
instructions.
(b) No provision of this Trust Preferred Securities Guarantee
shall be deemed to impose any duty or obligation on the Trust Preferred
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 Trust Preferred 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 Trust Preferred Guarantee
Trustee shall be construed to be a duty.
SECTION 3.3 Not Responsible for Recitals or Issuance of Guarantee
-----------------------------------------------------
The recitals contained in this Trust Preferred Securities
Guarantee shall be taken as the statements of the Guarantor, and the Trust
Preferred Guarantee Trustee does not assume any responsibility for their
correctness. The Trust Preferred Guarantee Trustee makes no representation as
to the validity or sufficiency of this Trust Preferred Securities Guarantee.
ARTICLE IV
TRUST PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Trust Preferred Guarantee Trustee; Eligibility.
----------------------------------------------
(a) There shall at all times be a Trust Preferred Guarantee
Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws
of the United States of America or any State or Territory thereof or of
the District of Columbia, or a corporation or Person permitted by the
Securities and Exchange Commission to act as an institutional trustee
under the Trust Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at
least 50 million U.S.
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<PAGE>
dollars ($50,000,000), and subject to supervision or examination by
Federal, State, Territorial or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the supervising or examining authority
referred to above, then, for the purposes of this Section 4.1(a)(ii),
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 Trust Preferred Guarantee Trustee shall
cease to be eligible to so act under Section 4.1(a), the Trust Preferred
Guarantee Trustee shall immediately resign in the manner and with the effect
set out in Section 4.2(c).
(c) If the Trust Preferred Guarantee Trustee has or shall
acquire any "conflicting interest" within the meaning of Section 310(b) of
the Trust Indenture Act, the Trust Preferred Guarantee Trustee and Guarantor
shall in all respects comply with the provisions of Section 310(b) of the
Trust Indenture Act.
SECTION 4.2 Appointment, Removal and Resignation of Trust Preferred
-------------------------------------------------------
Guarantee Trustee.
-----------------
(a) Subject to Section 4.2(b), the Trust Preferred Guarantee
Trustee may be appointed or removed without cause at any time by the
Guarantor.
(b) The Trust Preferred Guarantee Trustee shall not be removed
in accordance with Section 4.2(a) until a Successor Trust Preferred Guarantee
Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Trust Preferred Guarantee Trustee and
delivered to the Guarantor.
(c) The Trust Preferred Guarantee Trustee appointed to office
shall hold office until a Successor Trust Preferred Guarantee Trustee shall
have been appointed or until its removal or resignation. The Trust Preferred
Guarantee Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing executed by the Trust Preferred
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Trust Preferred Guarantee Trustee has been
appointed and has accepted such appointment by instrument in writing executed
by such Successor Trust Preferred Guarantee Trustee and delivered to the
Guarantor and the resigning Trust Preferred Guarantee Trustee.
(d) If no Successor Trust Preferred 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 Trust Preferred Guarantee Trustee may petition any court of
competent jurisdiction for appointment of a Successor Trust Preferred
Guarantee Trustee. Such court may thereupon, after prescribing such notice,
if any, as it may deem proper, appoint a Successor Trust Preferred Guarantee
Trustee.
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(e) No Trust Preferred Guarantee Trustee shall be liable for the
acts or omissions to act of any Successor Trust Preferred Guarantee Trustee.
(f) Upon termination of this Trust Preferred Securities
Guarantee or removal or resignation of the Trust Preferred Guarantee Trustee
pursuant to this Section 4.2, the Guarantor shall pay to the Trust Preferred
Guarantee Trustee all amounts accrued to the date of such termination, removal
or resignation.
SECTION 4.3 Compensation and Reimbursement of Expenses of Trust Preferred
-------------------------------------------------------------
Guarantee Trustee.
-----------------
The Guarantor covenants and agrees to pay to the Trust Preferred
Guarantee Trustee from time to time, and the Trust Preferred Guarantee Trustee
shall be entitled to, such compensation as shall be agreed to in writing
between the Guarantor and the Trust Preferred Guarantee Trustee (which shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust), and the Guarantor will pay or reimburse the
Trust Preferred Guarantee Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trust Preferred
Guarantee Trustee in accordance with any of the provisions of this Trust
Preferred Securities Guarantee (including the reasonable compensation and the
expenses and disbursements of its counsel and of all persons not regularly in
its employ) except any such expense, disbursement or advance as may arise from
its negligence or bad faith.
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 the Issuer), as and when due, regardless of any defense,
right of setoff or counterclaim that 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 this Trust
Preferred Securities Guarantee and of any liability to which it applies or may
apply, presentment, demand for payment, any right to require a proceeding
first against the 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.
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SECTION 5.3 Obligations Not Affected.
------------------------
The obligations, covenants, agreements and duties of the Guarantor
under this Trust Preferred Securities Guarantee shall be absolute and
unconditional and shall remain in full force and effect until the entire
liquidation amount of all outstanding Trust Preferred Securities shall have
been paid and 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 Trust Preferred
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, Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Trust Preferred
Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Trust Preferred
Securities (other than an extension of time for payment of Distributions,
Redemption Price, Liquidation Distribution or other sum payable that results
from the extension of any interest payment period on the Debentures;
(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 Trust
Preferred 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 Trust
Preferred 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.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing. No setoff, counterclaim, reduction, or diminution of any obligation
or any defense of any kind or nature that the Guarantor
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has or may have against any Holder shall be available hereunder to the
Guarantor against such Holder to reduce the payments to it under the Trust
Preferred Securities Guarantee.
SECTION 5.4 Rights of Holders.
-----------------
(a) The Holders of a Majority in liquidation amount of the Trust
Preferred Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trust Preferred
Guarantee Trustee in respect of this Trust Preferred Securities Guarantee or
exercising any trust or power conferred upon the Trust Preferred Guarantee
Trustee under this Trust Preferred Securities Guarantee.
(b) If the Trust Preferred Guarantee Trustee fails to enforce
this Trust Preferred Securities Guarantee, then any Holder of Trust Preferred
Securities may institute a legal proceeding directly against the Guarantor to
enforce the Trust Preferred Guarantee Trustee's rights under this Trust
Preferred Securities Guarantee without first instituting a legal proceeding
against the Issuer, the Trust Preferred Guarantee Trustee or any other person
or entity. The Guarantor hereby waives any right or remedy to require that
any action on this Trust Preferred Securities Guarantee 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 Trust Preferred Securities Guarantee creates a guaranty of
payment and not of collection.
SECTION 5.6 Subrogation.
-----------
The Guarantor shall be subrogated to all (if any) rights of the
Holders of Trust Preferred Securities against the Issuer in respect of any
amounts paid to such Holders by the Guarantor under this Trust Preferred
Securities Guarantee; provided, however, that the Guarantor shall not (except
-------- -------
to the extent required by mandatory provisions of law) be entitled to enforce
or exercise any right that it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a result of
payment under this Trust Preferred Securities Guarantee, if, at the time of
any such payment, any amounts are due and unpaid under this Trust Preferred
Securities Guarantee. If any amount shall be paid to 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 Trust
Preferred Securities, and that the Guarantor shall be liable as principal and
as debtor hereunder to make Guarantee Payments pursuant to the terms
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of this Trust Preferred Securities Guarantee notwithstanding the occurrence
of any event referred to in subsections (a) through (g), inclusive, of
Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions.
--------------------------
So long as any Trust Preferred Securities remain outstanding, if
there shall have occurred an Event of Default or an event of default under the
Declaration ("Declaration Event of Default"), then (a) the Guarantor shall not
declare or pay any dividend on, make any distribution with respect to, or
redeem, purchase or acquire, or make a liquidation payment with respect to,
any of its capital stock (other than (i) repurchases or acquisitions of the
Guarantor's common shares as contemplated by any employment arrangement,
benefit plan or other similar contract with or for the benefit of employees,
officers or directors entered into in the ordinary course of business, (ii)
repurchases of the Guarantor's common shares as contemplated by the Guarantor
Stock Investment Plan or Guarantor Deferred Compensation Plan, as in effect
immediately prior to the occurrence of such Event of Default or such
Declaration Event of Default, (iii) as a result of an exchange or conversion
of any class or series of the Guarantor's capital stock for the Guarantor's
common shares, provided that such class or series of the Guarantor's capital
stock was outstanding prior to the occurrence of such Event of Default or such
Declaration Event of Default, (iv) the purchase of fractional interests in
shares of the Guarantor's capital stock pursuant to the conversion or exchange
provisions of such Guarantor capital stock or the security being converted or
exchanged, provided that such Guarantor capital stock or security was
outstanding prior to the occurrence of such Event of Default or such
Declaration Event of Default, or (v) the payment of any stock dividend where
the dividend is paid in the form of the same stock as that on which the
dividend is paid), (b) the Guarantor shall not directly or indirectly, and
shall not allow any of its Subsidiaries to, make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem any debt
securities issued by the Guarantor that rank pari passu with or junior to the
Debentures, and (c) the Guarantor shall not make guaranty payments with
respect to the foregoing (other than pursuant to this Trust Preferred
Securities Guarantee Agreement).
SECTION 6.2 Ranking.
-------
This Trust Preferred Securities Guarantee will constitute an
unsecured obligation of the Guarantor and will rank (i) subordinate and junior
in right of payment to all other liabilities of the Guarantor, including the
Debentures, except those liabilities of the Guarantor made pari passu or
subordinate by their terms, (ii) pari passu with the most senior preferred or
preference stock, if any, hereafter issued by the Guarantor and with any
guaranty now or hereafter entered into by the Guarantor in respect of any
preferred or preference securities of any Affiliate of the Guarantor, and
(iii) senior to the Guarantor's common stock. If an Event of Default has
occurred and is continuing under the Declaration, the rights of the holders of
the Trust Common Securities
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to receive any payments under the Trust Common Securities Guarantee shall be
subordinate to the rights of the Holders of Trust Preferred Securities to
receive Guarantee Payments hereunder.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination.
-----------
This Trust Preferred Securities Guarantee shall terminate upon (i)
full payment of the Redemption Price of all Trust Preferred Securities, (ii)
the distribution of the Debentures to the Holders of all of the Trust
Preferred Securities or (iii) full payment of the amounts payable in
accordance with the Declaration upon dissolution of the Issuer.
Notwithstanding the foregoing, this Trust Preferred Securities Guarantee will
continue to be effective or will be reinstated, as the case may be, if at any
time any Holder of Trust Preferred Securities must restore payment of any sums
paid under the Trust Preferred Securities or under this Trust Preferred
Securities Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation.
-----------
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person for
any loss, damage or claim incurred by reason of any act or omission performed
or omitted by such Indemnified Person in good faith in accordance with this
Trust Preferred Securities Guarantee and in a manner that such Indemnified
Person reasonably believed to be within the scope of the authority conferred
on such Indemnified Person by this Trust Preferred Securities Guarantee or by
law, except that an Indemnified Person shall be liable for any such loss,
damage or claim incurred by reason of such Indemnified Person's negligence or
willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Guarantor, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence
and amount of assets from which Distributions to Holders of Trust Preferred
Securities might properly be paid.
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SECTION 8.2 Indemnification.
---------------
The Guarantor agrees to indemnify each Indemnified Person for, and
to hold each Indemnified Person harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees
and expenses) of defending itself against, or investigating, any claim or
liability in connection with the exercise or performance of any of its powers
or duties hereunder. The obligation to indemnify as set forth in this Section
8.2 shall survive the termination of this Trust Preferred Securities
Guarantee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns.
----------------------
All guaranties and agreements contained in this Trust Preferred
Securities Guarantee shall bind the successors, assigns, receivers, trustees
and representatives of the Guarantor and shall inure to the benefit of the
Holders of the Trust Preferred Securities then outstanding.
SECTION 9.2 Amendments.
----------
Except with respect to any changes that do not adversely affect
the rights of Holders (in which case no consent of Holders will be required),
this Trust Preferred Securities Guarantee may only be amended with the prior
approval of the Holders of at least a Majority in liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all the outstanding Trust Preferred
Securities. The provisions of Section 12.2 of the Declaration with respect to
meetings of Holders of the Securities apply to the giving of such approval.
SECTION 9.3 Notices.
-------
All notices provided for in this Trust Preferred Securities
Guarantee shall be in writing, duly signed by the party giving such notice,
and shall be delivered, telecopied or mailed by registered or certified mail,
as follows:
(a) If given to the Trust Preferred Guarantee Trustee, at the
Trust Preferred Guarantee Trustee's mailing address set forth below (or such
other address as the Trust Preferred Guarantee Trustee may give notice of to
the Holders of the Trust Preferred Securities):
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State Street Bank and Trust Company
Two International Place, 4th Floor
P.O. Box 778
Boston, Massachusetts 02102-0778
Attention: Corporate Trust Department
(b) If given to the Guarantor, at the Guarantor's mailing
address set forth below (or such other address as the Guarantor may give
notice of to the Holders of the Trust Preferred Securities):
WPS Resources Corporation
700 North Adams Street
P.O. Box 19001
Green Bay, Wisconsin 54307-9001
Attention: Treasurer
(c) If given to any Holder of Trust Preferred Securities, at the
address set forth on the books and records of the Issuer.
All such notices 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 9.4 Benefit.
-------
This Trust Preferred Securities Guarantee is solely for the
benefit of the Holders of the Trust Preferred Securities and, subject to
Section 3.1(a), is not separately transferable from the Trust Preferred
Securities.
SECTION 9.5 Governing Law.
-------------
THIS TRUST PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
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THIS TRUST PREFERRED SECURITIES GUARANTEE is executed as of the
day and year first above written.
WPS RESOURCES CORPORATION
as Guarantor
By: /s/ Larry L. Weyers
-------------------------------------
Name: Larry L. Weyers
Title: Chairman, President and
Chief Executive Officer
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity but
solely as Trust Preferred Guarantee Trustee
By: /s/ Paul D. Allen
--------------------------------------
Name: Paul D. Allen
Title: Vice President
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