AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 6, 1999
Registration No. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
--------------------------
WPS RESOURCES CORPORATION
(Exact name of registrant as specified in its charter)
Wisconsin 39-1775292
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
700 North Adams Street
P.O. Box 19001
Green Bay, Wisconsin 54307-9001
(920) 433-1727)
(Address, including zip code, and
telephone number, including area code, of
registrant's principal executive offices)
-----------------------------------------------------------
Larry L. Weyers
Chairman, President and Chief Executive Officer
WPS Resources Corporation
700 North Adams Street
P.O. Box 19001
Green Bay, Wisconsin 54307-9001
(920) 433-1727
(Name, address, including zip code,
and telephone number, including area code,
of agent for service)
with a copy to:
Michael S. Nolan
Foley & Lardner
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
(414) 297-5672
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: FROM
TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: |_|
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box: |X|
<PAGE>
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: |_|
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering: |_|
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box: |_|
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Title of Each Proposed Maximum Proposed Maximum
Class of Securities Amount to be Offering Price Aggregate Offering Amount of
to be Registered Registered (1) Per Unit Price (1) (2) Registration Fee
<S> <C> <C> <C> <C> <C> <C>
Debt Securities(3) (4) (4) (4)
Common Stock (4) (4) (4)
Common Stock
Purchase Rights(5)
TOTAL $400,000,000 $400,000,000 $111,200
(1) In no event will the aggregate initial price of all Debt Securities and
Common Stock (including the associated Common Stock Purchase Rights)
sold under this registration statement exceed $400,000,000.
(2) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457(o). Exclusive of accrued interest, if any.
(3) If the Debt Securities are issued at an original issue discount, then
the offering will be in such greater principal amount as shall result
in an aggregate initial offering price of $400,000,000, less the
initial offering price of any securities previously sold hereunder.
(4) Not applicable pursuant to General Instruction II.D to Form S-3.
(5) The Common Stock Purchase Rights are attached to and traded with the
shares of Common Stock being registered. The value attributable to the
Common Stock Purchase Rights, if any, is reflected in the value
attributable to the Common Stock.
</TABLE>
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its Effective Date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(A) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(A),
may determine.
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<PAGE>
THE INFORMATION IN THIS PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING
PROSPECTUS ARE NOT COMPLETE AND MAY BE CHANGED. WE MAY NOT SELL THESE SECURITIES
UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION IS EFFECTIVE. THIS PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING
PROSPECTUS ARE NOT AN OFFER TO SELL THESE SECURITIES AND THEY ARE NOT SOLICITING
AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT
PERMITTED.
PROSPECTUS SUPPLEMENT Subject to Completion
(To Prospectus dated ____________, 1999) October 6, 1999
WPS RESOURCES CORPORATION
$____,000,000
Medium-Term Notes
Due One Year or More from Date of Issue
We may offer our Medium-Term Notes at one or more times. The specific
terms of the particular notes being offered will be contained in a pricing
supplement.
The following terms will apply to particular notes being offered unless
otherwise specified in the applicable pricing supplement:
- They will be denominated in U.S. dollars and offered in
minimum denominations of $1,000 and integral multiples
thereof.
- They will mature one year or more after issuance.
- They will bear interest at a fixed rate which we will
determine at or prior to the sale thereof.
- Each note will pay interest semi-annually in arrears on the
dates specified in the applicable pricing supplement and at
maturity, or, if applicable, upon earlier redemption..
- They will not be redeemable prior to maturity and will not be
subject to a sinking fund.
- They will be issued in book-entry form, and notes of each
series will be represented by one or more global notes
deposited with or on behalf of The Depository Trust Company,
New York, New York and registered in its name or that of its
nominee.
- We will not list the notes on any securities exchange.
Agents' Discounts Proceeds
Price to Public and Commissions to Company
Per Note 100% _____% to _____% _____% to _____%
Total $____,000,000 $_____ to $_____ $_____ to $_____
We may offer the notes as follows:
- Through agents who have agreed to use reasonable efforts to
solicit offers to purchase the notes. Unless otherwise
specified in the pricing supplement, we will pay the agents
commissions within the range specified in the preceding table.
- Through one or more agents purchasing the notes as principal
and acting as underwriters or dealer. We will pay those agents
an underwriting commission or discount to be negotiated at the
time of sale.
- Directly to investors. We will not pay a discount or
commission to any agent if we sell the notes directly to
investors.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of the securities or passed upon the
accuracy of this prospectus supplement, the accompanying prospectus or any
pricing supplement. Any representation to the contrary is a criminal offense.
[Names of Agents]
The date of this prospectus supplement is ____________, 1999.
<PAGE>
You should rely only on the information contained or incorporated by
reference in this prospectus supplement, the attached prospectus and the
applicable pricing supplement. We have not authorized anyone to provide you with
different information, and if you receive any unauthorized information you
should not rely on it. We are not making an offer of these securities in any
place where the offer is not permitted. You should not assume that the
information contained or incorporated by reference in this prospectus
supplement, the attached prospectus or any pricing supplement is accurate as of
any date other than the date on the front of the applicable document.
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TABLE OF CONTENTS
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Prospectus Supplement
About this Prospectus Supplement; Pricing Supplement S-2
Description of the Notes S-3
Depositary Trust Company Year 2000 Compliance S-4
Plan of Distribution S-5
Legal Matters S-6
Prospectus
Summary 1
The Company 4
Use of Proceeds 5
Description of the Debt Securities 5
Description of Common Stock 16
Plan of Distribution 20
Legal Opinions 21
Experts 21
ABOUT THIS PROSPECTUS SUPPLEMENT; PRICING SUPPLEMENTS
We may use this prospectus supplement, together with the attached
prospectus and a pricing supplement, to offer our medium term notes from time to
time. The total initial public offering price of notes that we may be offering
by use of this prospectus supplement is $ ,000,000. That amount may be reduced
by the amount of any other securities issued under our shelf registration
statement (No. 333- ).
This prospectus supplement sets forth terms of the notes that we may
offer. It supplements the description of the debt securities and senior debt
securities contained in the attached prospectus. If information in this
prospectus supplement is inconsistent with the prospectus, this prospectus
supplement will apply and will supersede that information in the prospectus.
S-2
<PAGE>
Each time we issue notes, we will attach a pricing supplement to this
prospectus supplement. The pricing supplement will contain the specific
description of the notes being offered and the terms of the offering. The
pricing supplement may also add to, update or change information in this
prospectus supplement or the attached prospectus. Any information in the pricing
supplement that is inconsistent with this prospectus supplement or the attached
prospectus will apply and will supersede that information in this prospectus
supplement or the attached prospectus.
It is important for you to read and consider all information contained
in the prospectus supplement and the attached prospectus and pricing supplement
in making your investment decision. You should also read and consider the
information in the documents we have referred you to in "Where you can find more
information" on page _____ of the attached prospectus.
DESCRIPTION OF THE NOTES
General
The following is a summary of the important term of the notes. A
complete copy of the senior indenture under which the notes will be issued is
filed as an exhibit to the registration statement.
The notes will be "senior debt securities" as described in the attached
prospectus and will constitute one series of senior debt securities issued under
the senior indenture. The notes will have the same rank as any of our other
senior debt securities.
The notes are being offered on a continuing basis. Each note will
mature on a business day one year or more from its date of issue, as agreed
between us and the purchaser. Unless otherwise specified in the pricing
supplement, the notes will not be subject to redemption before maturity and will
not be subject to any sinking fund.
The notes will bear interest at a fixed rate.
The notes will be denominated in U.S. Dollars and payments of principal
and interest will be in U.S. Dollars. The authorized denominations of the notes
will be $1,000 and integral multiples of $1,000 in excess of $1,000.
Each note will be issued in fully registered form without coupons. Each
series of notes will be initially represented by one or more global notes and
deposited with, or on behalf of, the Depository Trust Company, as depositary.
Notes issued in global form will be "book entry notes". Beneficial interests in
a book - entry note will be shown on, and transfers of those interests will be
effected only through, records maintained by DTC or its participants. Except
under limited circumstances, book-entry notes will not be issuable in
certificated form. We will make payments of principal and interest on book-entry
notes to DTC or its nominee. Payments to owners of beneficial interests will be
made through DTC and its participants. See "DESCRIPTION OF THE DEBT SECURITIES -
BOOK ENTRY SECURITIES", in the attached prospectus.
S-3
<PAGE>
The pricing supplement relating to an offering of notes will designate
a fixed rate of interest per year payable on the notes. Notes may bear interest
at one or more annual rates of interest as specified in the pricing supplement.
Unless otherwise specified in the pricing supplement:
- Each note will accrue interest from and including its date of
issue;
- the interest payment dates for the notes will be _______ and
_________ of each year and upon maturity;
- the regular record dates for payment of interest will be
_______15 and ______15 of each year; and
- interest will be computed on the basis of a 360-day year of
twelve 30-day months.
We may modify or supplement any provisions of the senior indenture with
respect to a note to the extent any modified or additional provisions included
in the note are not inconsistent with the terms of the senior indenture. The
note and the pricing supplement will specify any such modified or additional
provisions.
DEPOSITORY TRUST COMPANY YEAR 2000 COMPLIANCE
The Depositary Trust Company ("DTC") has advised us that its management
is aware that some computer applications, systems and the like for processing
data that are dependent upon calendar dates, including dates before, on, and
after January 1, 2000, may encounter "Year 2000 problems." DTC has informed the
industry, including direct and indirect participants and other members of the
financial community, that it has developed and is implementing a program so that
its systems, as the same relate to the timely payment of distributions,
including principal and interest payments, to security holders, book-entry
deliveries, and settlement of trades within DTC, continue to function
appropriately. This program includes a technical assessment and a remediation
plan, each of which is complete. Additionally, DTC's plan includes a testing
phase, which is expected to be completed within appropriate time frames.
However, DTC's ability to perform its services properly also is
dependent upon other parties, including, but not limited to, issuers and their
agents, as well as third-party vendors from whom it licenses software and
hardware, and third-party vendors on whom it relies for information or the
provision of services, including telecommunication and electrical utility
service providers, among others. DTC has informed the industry that it is
contacting and will continue to contact third-party vendors from whom it
acquires services (1) to impress upon them the importance of these services
being Year 2000 compliant, and (2) to determine the extent of their efforts for
Year 2000 remediation and, as appropriate, testing of their services. In
addition, DTC is in the process of developing contingency plans as it deems
appropriate.
According to DTC, this information with respect to Year 2000 compliance
has been provided to the industry for informational purposes only and its not
intended to serve as a representation, warranty, or contract modification of any
kind.
S-4
<PAGE>
PLAN OF DISTRIBUTION
We may offer notes on a continuing basis to or through agents that
become parties to an agency agreement, the form of which is filed as an exhibit
to the registration statement. Each agent's obligations are separate and several
from those of any other agent. The agents individually or in a syndicate, may
purchase notes, as principal, from us from time to time for resale to investors
and other purchasers at varying prices relating to prevailing market prices at
the time of resale, as determined by the applicable agent or, if so specified in
the applicable pricing supplement, for resale at a fixed offering price. If
agreed to by us and an agent, such agent may also use its reasonable efforts on
an agency basis to solicit offers to purchase the notes at 100% of the principal
amount thereof, unless otherwise specified in the applicable pricing supplement.
We will pay a commission to an agent, ranging from ___% to ___% of the principal
amount of each note depending upon its stated maturity, sold though such agent
as our agent. We may also sell the notes directly to purchasers in those
jurisdictions which permit us to do so. No commission or discount will be
payable by us on notes sold directly by us.
As of the date of this prospectus supplement, the agents include
_______________________________________.
Unless otherwise specified in the applicable Pricing Supplement, an
agent will purchase any note sold to it as principal at a price equal to 100% of
the principal amount of the note less a percentage of the principal amount equal
to the commission applicable to an agency sale of a note of identical maturity.
An agent may sell notes it has purchased from us as principal to certain dealers
less a concession equal to all or any portion of the discount received in
connection with such purchase. The agent may allow, and such dealers may
reallow, a discount to certain other dealers. After the initial offering of
notes, the offering price (in the case of notes to be resold on a fixed offering
price basis), the concession and the reallowance may be changed.
We reserve the right to withdraw, cancel or modify the offer made
hereby without notice and may reject offers in whole or in part whether the
offers are placed directly with us or through an agent. Each agent will have the
right, in its discretion reasonably exercised, to reject in whole or in part any
offer to purchase notes received by it on an agency basis.
Upon issuance, the notes will not have an established trading market.
The notes will not be listed on any securities exchange. The agents may from
time to time purchase and sell notes in the secondary market, but the agents are
not obligated to do so, and there can be no assurance that there will be a
secondary market for the notes or that there will be liquidity in the secondary
market if one develops. From time to time, the agents may make a market in the
notes, but the agents are not obligated to do so and may discontinue any
market-making activity at any time.
In connection with an offering of notes purchased by one or more agents
as principal on a fixed price basis, each agent may engage in certain
transactions that stabilize the price of the notes. Transactions may consist of
bids or purchases for the purpose of pegging, fixing or maintaining the price of
the notes. If an agent creates a short position in the notes, that is, if it
sells Notes in an aggregate principal amount exceeding that set forth in the
applicable pricing supplement, such agent may reduce that short position by
purchasing notes in the open market. In general, purchases of notes for the
purpose of stabilization or to reduce a short position could cause the price of
notes to be higher than it might be in the absence of such purchases.
S-5
<PAGE>
Neither we nor any of our agents make any representation or prediction
as to the direction or magnitude of any effect that the transactions described
above may have on the price of the notes. In addition, neither we nor any of the
agents make any representation that the agents will engage in any such
transactions or that such transactions once commenced will not be discontinued
without notice.
The agents and dealers which participate in the offering of the notes
may be deemed to be "underwriters" within the meaning of the Securities Act of
1933. We have agreed to indemnify the agents and certain other persons against,
and to provide contribution with respect to, certain liabilities, including
liabilities under the Securities Act. We also have agreed to reimburse the
agents for certain other expenses.
The agents have in the past performed, and in the future may perform,
various services for us in the ordinary course of its business.
LEGAL MATTERS
Our counsel, Foley & Lardner, Milwaukee, Wisconsin will issue its opinion as to
the validity of the notes being issued. Schiff Hardin & Waite, Chicago, Illinois
will issue an opinion for the agents as to certain matters relating to the
offering of the notes.
S-6
<PAGE>
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED.
WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
Subject to Completion
October 6, 1999
PROSPECTUS
WPS RESOURCES CORPORATION
700 North Adams Street
P.O. Box 19001
Green Bay, Wisconsin 54307-9001
(920) 433-1727
$400,000,000
DEBT SECURITIES
COMMON STOCK (WITH ASSOCIATED PURCHASE RIGHTS)
--------------------
We will provide specific terms of these securities in supplements to
this prospectus.
You should read this prospectus and any supplement carefully before you
invest.
--------------------
These securities have not been approved by the Securities and Exchange
Commission or any state securities commission, nor have these organizations
determined that this prospectus is accurate or complete. Any representation to
the contrary is a criminal offense.
The date of this prospectus is ____________, 1999
<PAGE>
SUMMARY
This summary highlights selected information from this document and may
not contain all of the information that is important to you. To understand the
terms of our securities, you should carefully read this document with the
attached prospectus supplement. Together these documents will give the specific
terms of the securities we are offering. You should also read the documents we
have incorporated by reference into this prospectus for information on us and
our financial statements.
THE SECURITIES WE MAY OFFER
This prospectus is part of a registration statement (No. 333-_____)
that we filed with the Securities and Exchange Commission utilizing a "shelf"
registration process. Under this shelf process, we may offer from time to time
up to $400,000,000 of the following securities: debt securities and common stock
with associated common stock purchase rights. This prospectus provides you with
a general description of the securities we may offer. Each time we offer
securities, we will provide you with a prospectus supplement that will describe
the specific amounts, prices and terms of the securities being offered. The
prospectus supplement may also add, update or change information contained in
this prospectus.
DEBT SECURITIES
We may offer unsecured general obligations of our company, which may be
senior or subordinate. We will refer to the senior debt securities and the
subordinated debt securities together in this prospectus as the "debt
securities". The senior debt securities will have the same rank as all of our
other unsecured, unsubordinated debt. The subordinated debt securities will be
entitled to payment only after payment on our senior indebtedness. Senior
indebtedness includes all indebtedness for money borrowed by us, except our
currently outstanding junior subordinated deferrable interest debentures due
2038 and any indebtedness issued in the future that is stated to be not superior
to, or to have the same rank as, the subordinated debt securities.
Claims of creditors and any preferred shareholders of each of our
subsidiaries generally will have priority with respect to the assets and
earnings of such subsidiaries over the claims of our creditors. The debt
securities therefore will be effectively subordinated to creditors, including
holders of secured indebtedness, and preferred shareholders of our subsidiaries.
The senior debt securities will be issued under an indenture between us
and Firstar Bank, National Association. The subordinated debt securities will be
issued under an indenture between us and the trustee we name in a prospectus
supplement. We encourage you to read the indentures which are exhibits to the
registration statement and our recent periodic and current reports that we file
with the Securities and Exchange Commission.
<PAGE>
GENERAL INDENTURE PROVISIONS THAT APPLY TO SENIOR AND SUBORDINATED DEBT
SECURITIES
Neither indenture limits the amount of debt that we may incur. In
addition, neither indenture provides holders with any protection should there be
a recapitalization or restructuring involving our company.
The indentures allow us to merge or consolidate with another company,
or to sell all or most of our assets to another company. If these events occur,
the other company will be required to assume our responsibilities relating to
the debt securities, and we will be released from all liabilities and
obligations.
The indentures provide that holders of a majority of the outstanding
principal amount of any series of debt securities may vote to change our
obligations or your rights concerning that series. However, to change the amount
or timing of payments of principal or interest or other payments for a series of
debt securities, every holder in the series must consent.
We may discharge our obligations under the indenture relating to the
senior or subordinated debt securities by depositing with the trustee sufficient
funds or government obligations to pay the senior or subordinated debt
securities when due.
EVENTS OF DEFAULT. Each indenture provides that the following are
events of default:
- If we do not pay interest for 30 days after its due date.
- If we do not pay principal or premium when due.
- If we continue to breach a covenant for 60 days after notice.
- If we enter bankruptcy or become insolvent.
If an event of default occurs with respect to any series of debt
securities, the trustee or holders of 25% of the outstanding principal amount of
that series may declare the principal amount of the series immediately payable.
However, holders of a majority of the principal amount may rescind this action.
If the event of default is due to our bankruptcy or insolvency, the outstanding
principal amount of all the debt securities will become immediately payable,
without any action on the part of the trustees or the holders of the debt
securities.
GENERAL INDENTURE PROVISIONS THAT APPLY ONLY TO SENIOR DEBT SECURITIES
Our failure to pay when due, subject to any applicable grace period,
any principal of, or interest on, any indebtedness for borrowed money incurred
or guaranteed by us in the aggregate principal amount of at least $50,000,000
constitutes an event of default under the senior indenture.
The senior indenture requires us, so long as any senior debt securities
are outstanding:
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<PAGE>
- to own all of the outstanding shares of voting common stock of
Wisconsin Public Service Corporation unless we transfer the
shares pursuant to our merger or consolidation or sale of
substantially all of our properties.
- not to pledge or grant a security interest or permit any
pledge, security interest or other lien upon any capital stock
of any of our subsidiaries to secure indebtedness for money
borrowed without securing the senior debt securities equally
and notably with the other secured indebtedness except for
* pledges, security interests or encumbrances created
to secure the purchase price of the capital stock of
the subsidiaries,
* liens and security interests existing at the time of
our acquisition of the shares or
* any extension or renewal of any permitted pledge,
security interest or encumbrance.
GENERAL INDENTURE PROVISIONS THAT APPLY ONLY TO SUBORDINATED DEBT SECURITIES
The subordinated debt securities will be subordinated to all senior
indebtedness. In addition, as previously noted under "DEBT SECURITIES", claims
of the creditors and preferred shareholders of each of our subsidiaries
generally will have priority with respect to that subsidiary's assets and
earnings over the claims of our creditors, including holders of the subordinated
debt securities. The subordinated debt securities, therefore, will be
effectively subordinated to creditors and preferred shareholders of our
subsidiaries.
COMMON STOCK
We may offer shares of our common stock, par value $1.00 per share.
Holders of our common stock are entitled to receive dividends when declared by
the Board of Directors. Each holder of our common stock is entitled to one vote
per share. The holders of our common stock have no preemptive rights or
cumulative voting rights. Our articles of incorporation do not presently
authorize our company to issue preferred stock or other stock having rights
prior to those of the holders of our common stock.
Each share of our common stock will have an associated right to
purchase one share of our common stock at an exercise price of $85 per share.
The rights are not presently exercisable. Under certain circumstances, however,
each right will entitle the holder to purchase at the exercise price our common
stock having a market value of twice the exercise price. See "DESCRIPTION OF
COMMON STOCK - Pre-emptive Rights; Common Stock Purchase Rights" in this
Prospectus.
3
<PAGE>
RATIOS OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for each of the periods
indicated are as follows:
SIX MONTHS
ENDED JUNE 30, YEAR ENDED DECEMBER 31,
-------------- -----------------------------------
1999 1998 1998 1997 1996 1995 1994
---- ---- ---- ---- ---- ----- ----
Ratio of earnings to
fixed charges.......... 3.64 3.27 2.83 3.15 3.06 3.47 3.39
We have computed the ratio of earnings to fixed charges by dividing
earnings, which includes income before taxes and fixed charges, by fixed
charges. This calculation excludes the effects of accounting changes which have
been made over time. "Fixed charges" consist of (1) interest on debt and a
portion of rentals determined to be representative of interest and (2) the
preferred stock dividend requirements of our subsidiaries. The preferred stock
dividend requirements of our subsidiaries were assumed to be equal to the
pre-tax earnings that would be required to cover such dividend requirements
based on our effective income tax rates for the respective periods.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and
other information with the Securities and Exchange Commission. You may read and
copy any document we file at the Commission's public reference room at 450 Fifth
Street, N.W., Washington, D.C., 20549. Please call the Commission at
1-800-SEC-O330 for further information on the public reference rooms. Our
Securities and Exchange Commission filings are also available to the public at
the Commission's web site at http://www.sec.gov.
The Securities and Exchange Commission allows us to "incorporate by
reference" into this prospectus the information we file with it, which means
that we can disclose important information to you by referring you to those
documents. The information incorporated by reference is considered to be part of
this prospectus, and later information that we file with the Commission will
automatically update and supersede this information. We incorporate by reference
the documents listed below and any future filings made with the Securities and
Exchange Commission under Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934 until our offering is completed:
i. Annual Report on Form 10-K for the year ended December 31,
1998, as amended by Form 10-K/A filed June 8, 1999;
ii. Quarterly Reports on Form 1O-Q for the quarters ended March
31, 1999 and June 30, 1999;
iii. Current Report on Form 8-K/A, filed on March 1, 1999, and
Current Report on Form 8-K filed on June 1, 1999; and
4
<PAGE>
iv. Description of Common Stock contained in Registration
Statement on Form 8-B filed on June 1, 1994; and
v. Description of Common Stock Purchase Rights contained in
Registration Statement on Form 8-A filed on December 13, 1996.
You may request a copy of these filings, at no cost, by writing to or
telephoning us at the following address:
WPS Resources Corporation
Attn: Secretary
700 North Adams Street
P.O. Box 19001
Green Bay, Wisconsin 54307-9001
(920) 433-1727
Our reports are also available on our website located at
http://www.wpsr.com.
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. We are not making an
offer of these securities in any state where the offer is not permitted. You
should not assume that the information in this prospectus or any prospectus
supplement is accurate as of any date other than the date on the front of the
document.
THE COMPANY
We operate as a holding company with both regulated and non-regulated
business units. We are organized under the laws of the State of Wisconsin. Our
principal wholly-owned subsidiary is Wisconsin Public Service Corporation, a
regulated electric and gas utility operating in northeastern Wisconsin and the
Upper Peninsula of Michigan. Our other major subsidiaries are Upper Peninsula
Power Company, a regulated electric company operating in the Upper Peninsula of
Michigan; WPS Energy Services, Inc., a diversified energy company which sells
electric energy, natural gas and alternate fuel products, risk management
consulting services and project management; and WPS Power Development, Inc.,
which develops, acquires and owns electric projects and provides services to the
electric power generation industry.
USE OF PROCEEDS
Unless otherwise specified in the applicable prospectus supplement, we
will use the net proceeds we receive from the sale of the securities offered by
this prospectus and the accompanying prospectus supplement for general corporate
purposes. General corporate purposes may include the repayment of debt and
investments in or extensions of credit to our subsidiaries. It is likely,
however, that most of the securities offered pursuant to this prospectus and the
accompanying prospectus supplement will be issued in connection with the
financing of possible acquisitions or business expansion. We may invest the net
proceeds temporarily or apply the net proceeds to repay short-term debt until we
use the net proceeds for one of these stated purposes.
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DESCRIPTION OF THE DEBT SECURITIES
The following description of the terms of the debt securities sets
forth general terms that may apply to the debt securities. The particular terms
of any series of debt securities will be described in the prospectus supplement
relating to those debt securities.
The debt securities will be either our senior debt securities or our
subordinated debt securities. The senior debt securities will be issued under an
indenture dated as of October 1, 1999 between us and Firstar Bank, National
Association, Cincinnati, Ohio as trustee. This indenture is referred to as the
"senior indenture". The subordinated debt securities will be issued under an
indenture to be entered into between us and the trustee named in a prospectus
supplement. This indenture is referred to as the "subordinated indenture". This
prospectus refers to the senior indenture and the subordinated indenture
together as the "indentures".
The following is a summary of the most important provisions of the
indentures. Copies of the entire indentures are exhibits to the registration
statement of which this prospectus is a part. Section references below are to
the section in the applicable indenture. The referenced sections of the
indentures are incorporated by reference.
General
Neither indenture limits the amount of debt securities that we may
issue. Each indenture provides that debt securities may be issued up to the
principal amount authorized by us from time to time. The senior debt securities
will be unsecured and will have the same rank as all of our other unsecured and
unsubordinated debt. The subordinated debt securities will be unsecured and will
be subordinated and junior to all senior indebtedness.
The debt securities may be issued in one or more separate series of
senior debt securities or subordinated debt securities. The prospectus
supplement relating to the particular series of debt securities being offered
will specify the particular amounts, prices and terms of those debt securities.
These terms may include:
- the title of the debt securities;
- any limit on the aggregate principal amount of the debt
securities of the series;
- the date on which the debt securities will mature;
- the interest rate or rates, or the method of determining those
rates;
- the date from which interest will accrue or the method for
determining such date;
- the interest payment dates and the regular record dates;
- the places where payments may be made;
- any mandatory or optional redemption provisions;
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- any sinking fund or analogous provisions;
- the portion of principal amount of the debt security payable
upon acceleration of maturity if other than the full principal
amount;
- any additions to the events of default or covenants included
in the indenture under which the debt securities are issued,
as described in this prospectus;
- if other than U.S. dollars, the currency or currencies, or
units based on or related to currencies, in which payments on
the debt securities will be payable;
- whether the debt securities will be issued in the form of a
global security;
- any other specific terms of the debt securities.
The debt securities will be registered debt securities and, unless otherwise
specified in the prospectus supplement, will be payable in U.S. dollars in
denominations of $1,000 or an integral multiple of $1,000.
(Sections 2.01 and 3.01)
Some of the debt securities may be issued as original issue discount
debt securities. Original issue discount securities bear no interest or bear
interest at below-market rates and will be sold at a discount below their stated
principal amount. The applicable prospectus supplement will also contain any
special tax, accounting or other information relating to original issue discount
securities or to other kinds of debt securities that may be offered, including
debt securities linked to an index or payable in currencies other than U.S.
dollars.
Exchange, Registration and Transfer
Debt securities may be transferred or exchanged at the corporate trust
office of the security registrar or at any other office or agency maintained by
us for those purposes. Except as otherwise described in a prospectus supplement,
no service charge will be payable upon the transfer or exchange of debt
securities, except for any applicable tax or governmental charge. (Section 3.05)
The designated security registrar for the senior debt securities is Firstar
Bank, National Association, located at 425 Walnut Street, Sixth Floor,
Cincinnati, Ohio 45202. The security registrar for the subordinated debt
securities will be designated in a prospectus supplement.
In the event of any redemption of any series of debt securities, we
will not be required to:
1. issue, register the transfer of, or exchange, debt securities
of any series between the opening of business 15 business days
before the date of the mailing of the notice of redemption of
the debt securities of that series to be redeemed and the
close of business on the date of mailing of the relevant
notice of redemption; or
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2. register the transfer of, or exchange, any debt security
selected for redemption, in whole or in part, except the
unredeemed portion of any debt security being redeemed in
part.
(Section 3.05)
Payment And Paying Agent
We will pay principal, interest and any premium on debt securities
which are not global securities at the office of the paying agent. We will make
payment of interest on the debt securities which are not global securities by
check mailed to the persons in whose names the debt securities are registered on
days specified in the indentures or the applicable prospectus supplement. We
will also make payments by wire transfer to a U.S. bank designated by a holder
of debt securities in an aggregate principal amount of at least $10,000,000, all
of which have the same interest payment dates, upon receipt of a written request
from the holder, on or before the record date for the payment, designating the
account to which the payment is to be made. (Section 2.05)
If any amount payable on any debt security remains unclaimed at the end
of two years after the amount became due and payable, the paying agent will
release any unclaimed amounts to us, and the holder of the debt security will
look only to us for payment. (Section 10.07)
The paying agent for the senior debt securities is First Bank, National
Association, located at 425 Walnut Street, Sixth Floor, Cincinnati, Ohio 45202.
The paying agent for the subordinated debt securities will be designated in the
applicable prospectus supplement.
Book-Entry Securities
We may initially issue the debt securities of any series in the form of
one or more global securities under a book-entry only system operated by a
securities depositary. Unless otherwise specified in the applicable Prospectus
Supplement, the Depository Trust Company ("DTC"), New York, New York, will act
as securities depositary for each series of debt securities that are issued as
fully-registered securities. The indenture trustee will register in the name of
CEDE & Co. (DTC's partnership nominee) those securities for which DTC is acting
as depositary. Individual purchases of book-entry interests in any of the debt
securities will be made in book-entry form. So long as CEDE & Co., as nominee of
DTC, is the securityholder, references in this prospectus to holders of the debt
securities or registered owners will mean CEDE & Co., rather than the owners of
beneficial ownership interests in the debt securities.
DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the new York Banking
Law, a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934. DTC holds securities that its direct participants deposit with DTC.
DTC also facilitates the settlement among DTC participants of securities
transactions such as transfers and pledges of deposited securities through
electronic computerized book-entry changes in accounts of DTC direct
participants, thereby eliminating the need for physical movement of
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securities certificates. DTC direct participants include securities brokers and
dealers, banks, trust companies, clearing corporations and certain other
organizations. DTC is owned by a number of the DTC direct participants and by
the New York Stock Exchange, Inc., the American Stock Exchange, Inc., and the
National Association of Securities Dealers, Inc. Access to the DTC system is
also available to others, such as securities brokers and dealers, banks and
trust companies that clear through or maintain a custodial relationship with a
DTC direct participant, either directly or indirectly. The rules applicable to
DTC and its participants are on file with he Securities and Exchange Commission.
Anyone desiring to purchase debt securities under the DTC system must
make these purchases by or through DTC direct participants which will receive a
credit for the debt securities on DTC's records. The direct and indirect
participants will in turn record the ownership interest of each actual purchaser
of the debt securities on the records of the direct or indirect participant. DTC
will not provide beneficial owners of the debt securities with written
confirmations of their purchases. Owners of book-entry interests should receive
from the direct or indirect participant written confirmations of their purchases
providing details of the beneficial owners transactions, as well as periodic
statements of their holdings. DTC direct and indirect participants are to effect
transfers of beneficial ownership interests by entries made on the books of the
DTC direct or indirect participants acting on behalf of the beneficial owners.
Owners of beneficial interests in the debt securities will not receive or be
entitled to receive certificates representing their ownership interests in the
debt securities, except as described below upon the discontinuance of the use of
the book-entry system.
Principal and the redemption price of, and interest payments on the
debt securities held by or on behalf of DTC as depositary will be made to Cede &
Co., as nominee of DTC. DTC's practice is to credit the accounts of DTC direct
participants upon DTC's receipt from the issuer or trustee of funds and
corresponding detail information on a payment date in accordance with their
respective holdings shown on the records of DTC. Payments by DTC direct and
indirect participants to owners of beneficial ownership interests in the debt
securities will be governed by standing instructions and customary practices, as
is the case with securities held for the accounts of customers in bearer form or
registered in "street name," and will be the responsibility of such DTC direct
or indirect participant and not of DTC, the indenture trustee or us, subject to
any statutory or regulatory requirements as may be in effect from time to time.
DTC is responsible for disbursing such payments to the appropriate DTC direct
participants, and those DTC direct participants, and any indirect participants,
are in turn responsible for disbursing the payment to the owners of beneficial
ownership interests.
To facilitate subsequent transfers, the indenture trustee will register
all debt securities which DTC direct participants deposit with DTC in the name
of DTC's partnership nominee, Cede & Co. The deposit of debt securities with DTC
and their registration in the name of Cede & Co. effect no change in beneficial
ownership. DTC has no knowledge of the actual beneficial owners of the debt
securities; DTC's records reflect only the identity of the DTC direct
participants to whose accounts the debt securities are credited, which may or
may not be the beneficial owners. The participants will remain responsible for
keeping account of their holdings on behalf of their customers.
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Conveyance of notices and other communications by DTC to DTC direct
participants, by direct participants to indirect participants, and by direct
participants and indirect participants to beneficial owners of debt securities
will be governed by arrangements among them, subject to any statutory or
regulatory requirements as may be in effect from time to time.
The indenture trustees will send redemption notices to DTC. If we are
redeeming less than all of the debt securities within an issue, DTC's practice
is to determine by lot the amount of the interest of each direct participant in
such issue to be redeemed.
Neither DTC nor Cede & Co. will consent or vote with respect to the
debt securities. Under its usual procedures, DTC will mail an omnibus proxy to
us as soon as possible after the record date. The omnibus proxy assigns Cede &
Co.'s consenting or voting rights to those DTC direct participants to whose
accounts the debt securities are credited on the record date (identified in a
listing attached to the omnibus proxy).
DTC may discontinue providing its services as debt securities
depositary with respect to the debt securities at any time by giving reasonable
notice to us or the indenture trustee. Under these circumstances, in the event
that a successor securities depositary is not obtained, debt security
certificates are required to be printed and delivered.
We may decide to discontinue use of the system of book-entry transfers
through DTC (or a successor securities depositary). In that event, we will cause
debt security certificates to be printed and delivered.
The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources that we believe to be reliable, but
neither we, the indenture trustees nor any underwriter takes any responsibility
for the accuracy of the description of DTC's business organization and
procedures.
Neither we nor the trustees under the indentures will have any
responsibility or obligation to any DTC direct or indirect participant or any
owner of a book-entry interest or any other person not shown on the registration
books of the trustees as being a holder of the debt securities with respect to:
(1) any debt securities; (2) the accuracy of any records maintained by DTC or
any DTC direct or indirect participant; (3) the payment by DTC or any DTC direct
or indirect participant of any amount due to any owner of a book-entry interest
in respect of the principal or redemption price of or interest on the debt
securities; (4) the delivery by DTC or any DTC direct or indirect participant of
any notice to any owner of a book-entry interest which is required or permitted
under the terms of the indentures to be given to holders of the debt securities;
(5) the selection of the owners of a book-entry interest to receive payment in
the event of any partial redemption of any senior debt securities; or (6) any
consent given or other action taken by DTC or its nominee as holder of the debt
securities.
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Limitation On Merger, Consolidation And Certain Sales Of Assets
We may, without the consent of the holders of the debt securities,
merge into or consolidate with any other corporation, or convey or transfer all
or substantially all of our properties and assets to another person provided
that:
1. the successor is a corporation;
2. the successor expressly assumes on the same terms and
conditions all the obligations under the debt securities and
the indentures;
3. immediately after giving effect to the transaction, there is
no default under the applicable indenture; and
4. We deliver to the trustees a certificate and an opinion of
counsel stating that the transaction complies with the
indentures. (Sections 8.01 and 8.02)
The remaining or acquiring corporation will take over all of our rights
and obligations under the indentures. (Section 8.03)
Satisfaction And Discharge; Defeasance
We may be discharged from our obligations on the debt securities of any
series that have matured or will mature or be redeemed within one year if we
deposit with the trustee enough cash to pay all the principal, interest and any
premium due to the stated maturity date or redemption date of the debt
securities. (Section 4.01)
Each indenture contains a provision that permits either (1) our
discharge from all of our obligations (subject to limited exceptions) with
respect to any series of debt securities then outstanding or (2) our release
from our obligations under covenants respecting any series of debt securities
and from the consequences of an event of default resulting from the breach of
those covenants.
To exercise either of these two options, we must deposit in trust with
the trustee enough money to pay in full the principal, interest and premium on
the series of debt securities. This amount may be made in cash and/or U.S.
government obligations. (Sections 13.02 and 13.03) As a condition to exercising
either of the above options, we must deliver to the trustee a ruling directed to
the trustee from the Internal Revenue Service or an opinion of counsel based on
an Internal Revenue Service Ruling or a change in applicable federal income tax
law since the date of the indenture, in each case to the effect that the holders
of the debt securities will not recognize income, gain or loss for Federal
income tax purposes as a result of the action and will be subject to Federal
income tax on the same amount, in the same manner and at the same times as would
have been the case if the action had not taken place. (Section 13.04)
If we exercise either of these options, the holders of the debt
securities of the series affected will be entitled to receive, solely from the
trust fund, payments of principal, interest and premium
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on the debt securities and will not be entitled to any of the other benefits of
the indenture, except for limited provisions including our obligations
respecting registration of transfer and exchange of debt securities, replacement
of lost, stolen or mutilated debt securities, maintenance of paying agencies and
holding moneys for payment in trust. (Sections 13.02 and 13.03)
Events Of Default, Notice And Waiver
Each indenture defines an event of default with respect to any series
of debt securities as one or more of the following events:
- our failure to pay interest on any debt security for 30 days
after it is due;
- our failure to pay the principal or any premium on any debt
securities when due;
- our failure to perform any other covenant in the debt
securities of the series or in the applicable indenture with
respect to debt securities of that series for 60 days after
being given notice of the failure; and
- our entering into bankruptcy or becoming insolvent.
In addition, our failure to pay when due, subject to any applicable
grace period, any principal of, or interest on, any indebtedness for borrowed
money incurred or guaranteed by us in the aggregate principal amount of at least
$50,000,000 constitutes an event of default under the senior indenture. An event
of default for one series of debt securities is not necessarily an event of
default for any other series of debt securities.
(Section 5.01)
Each indenture requires the trustee to give the holders of a series of
debt securities notice of a default with respect to that series within 30 days
unless the default is cured or waived. However, the trustee may withhold this
notice if it determines in good faith that it is in the interest of those
holders. The trustee may not, however, withhold this notice in the case of a
payment default. (Section 6.02)
Other than the duty to act with the required standard of care during an
event of default, a trustee is not obligated to exercise any of its rights or
powers under the indenture at the request or direction of any of the holders of
debt securities, unless the holders have offered to the trustee reasonable
indemnification. (Section 6.03) Generally, the holders of a majority in
principal amount of outstanding debt securities of any series may direct the
time, method and place of conducting any proceeding for any remedy available to
the trustee, or exercising any trust or other power conferred on the trustee.
(Section 5.12)
If an event of default with respect to series of debt securities (other
than due to events of bankruptcy, insolvency or reorganization) occurs, the
trustee or the holders of at least 25% in aggregate principal amount of the
outstanding debt securities of that series, by notice in writing to us and to
the trustee, may declare the unpaid principal of and accrued interest on all the
debt securities of that series to be due and payable immediately and, upon any
such declaration, the debt securities of that series will become immediately due
and payable.
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If an event of default occurs due to bankruptcy, insolvency or
reorganization, all unpaid principal of and accrued interest on the outstanding
debt securities of any series will become immediately due and payable without
any declaration or other act on the part of the trustee or any holder of any
debt security of that series. (Section 5.02)
The holders of not less than a majority of the principal amount of the
outstanding debt securities of any series may rescind a declaration of
acceleration and its consequences with respect to the debt securities of this
series if:
- all existing events of default, other than the nonpayment of
principal of and interest on the debt securities of that
series that have become due solely as a result of such
declaration of acceleration, have been cured or waived;
- to the extent lawful, interest on overdue interest and on
overdue principal that has become due otherwise than by reason
of such acceleration has been paid;
- the rescission would not conflict with any judgment or decree
of a court of competent jurisdiction; and
- all amounts due to the trustee under the indenture have been
paid.
(Section 5.02)
Each indenture requires us to file annually with the trustee a
certificate of our principal executive, financial or accounting officer as to
the knowledge of the officer of our compliance with all conditions and covenants
under the indenture. (Section 7.04)
Modification of the Indentures
Together with the trustee, we may modify the indentures without the
consent of the holders for limited purposes, including adding covenants or
events of default, establishing forms or terms of debt securities, curing
ambiguities and making certain other changes which do not adversely affect the
holders in any material respect.
(Section 9.01)
Together with the trustee, we may make modifications and amendments to
each indenture with the consent of the holders of a majority in principal amount
of the outstanding debt securities of all affected series.
However, without the consent of each affected holder, no modification may:
- change the stated maturity or interest payment date of any
debt security;
- reduce the principal, premium (if any) or rate of interest on
any debt security;
- change any place of payment or the currency in which any debt
security is payable;
- impair the right to enforce any payment after the stated
maturity, payment, or redemption date;
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- reduce the percentage of holders of outstanding debt
securities of any series required to consent to any
modification, amendment or waiver under the indenture;
- change the redemption provisions of the indenture in a manner
adverse to a holder; or
- change the provisions of the indenture which relate to its
modification or amendment. (Section 9.02)
Governing Law
The indentures and the debt securities will be governed by, and
construed under, the laws of the State of Wisconsin.
Concerning The Trustees
We may from time to time maintain lines of credit, and have other
customary banking relationships, with the trustee under the senior indenture or
the trustee under the subordinated indenture.
Senior Debt Securities
The senior debt securities will be unsecured and will rank equally with
all of our other unsecured and non-subordinated debt.
Our failure to pay when due, subject to any applicable grace period,
any principal of, or interest on, any indebtedness for borrowed money incurred
or guaranteed by us in the aggregate principal amount of at least $50,000,000
constitutes an event of default under the senior indenture.
We agree in the senior indenture that so long as any senior debt
securities are outstanding, we will own, directly or indirectly, all of the
shares of voting common stock of Wisconsin Public Service Corporation now or
hereafter issued and outstanding, unless we transfer or sell these shares in a
transaction which complies with the provisions of the senior indenture relating
to our merger, consolidation or sale of substantially all of our properties. See
"Limitation on Merger, Consolidation and Certain Sales of Assets" in this
Prospectus. (Section 10.08)
We agree in the senior indenture that so long as any senior debt
securities are outstanding, we will not pledge or grant a security interest in,
or permit any pledge, security interest or other lien upon, any capital stock of
any of our subsidiaries to secure any indebtedness for money borrowed, without
making effective provision to secure the senior debt securities equally and
ratably with the other indebtedness and any other indebtedness similarly
entitled to be equally and ratably secured. This restriction will not apply,
however, to (l) the creation or existence of any pledge, security interest, or
encumbrance upon any of the capital stock of our subsidiaries (A) created at the
time of our acquisition of the capital stock or within one year after our
acquisition of the capital stock to secure all or a portion of the purchase
price for the capital stock or (B) existing
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on the capital stock at the time of our acquisition of it, or (2) any extension,
renewal or refunding of any pledge, security interest, or encumbrance described
in clause (1). (Section 10.09)
Subordinated Debt Securities
The subordinated debt securities will be unsecured. The subordinated
debt securities will be subordinate in right of payment to all senior
indebtedness. (Section 14.01 of Subordinated Indenture) In addition, claims of
our subsidiaries' creditors and preferred shareholders generally will have
priority with respect to the assets and earnings of the subsidiaries over the
claims of our creditors, including holders of the subordinated debt securities,
even though those obligations may not constitute senior indebtedness. The
subordinated debt securities, therefore, will be effectively subordinated to
creditors, including trade creditors, and preferred shareholders of our
subsidiaries.
The subordinated indenture defines "senior indebtedness" to mean the
principal of, premium, if any, and interest on:
- all of our indebtedness for money borrowed;
- indebtedness evidenced by securities, debentures, bonds or
other similar instruments issued by us;
- all of our capital lease obligations;
- all of our obligations issued or assumed as the deferred
purchase price of property, all of our conditional sales
contracts and all of our obligations under any title retention
agreements (but excluding trade accounts payable arising in
the ordinary course of business);
- all of our obligations for reimbursement on any letter of
credit, banker's acceptance, security purchase facility or
similar credit transaction;
- all obligations of the types previously described of other
persons for the payment of which we are responsible or liable
as obligor, guarantor or otherwise; and
- all obligations of the types previously described of other
persons secured by any lien on any of our property, whether or
not such obligation is assumed by us.
However, the term "senior indebtedness" will not include:
- our 7.00% Junior Subordinated Deferrable Interest Debentures
due 2038;
- any indebtedness which is by its terms subordinated, to or
pari passu with, the subordinated debt securities; or
- any of our obligations to any of our affiliates.
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There is no limitation under either indenture on our ability to issue
additional senior indebtedness. The senior debt securities constitute senior
indebtedness under the subordinated indenture. The subordinated debt securities
will rank equally with our other subordinated indebtedness.
Under the subordinated indenture, no payment may be made on the
subordinated debt securities, including any redemption or sinking fund payment
if:
- any of our senior indebtedness has not been paid when due and
any applicable grace period has ended and the default has not
been cured or waived or ceased to exist, or
- the maturity of any senior indebtedness has been and remains
accelerated as a result of a default.
In the event that we pay or distribute our assets to creditors upon any
dissolution, winding-up, liquidation or reorganization of us, whether voluntary
or involuntary, the holders of senior indebtedness will be entitled to receive
payment in full of the senior indebtedness before the holders of subordinated
debt securities are entitled to receive or retain any payment. Until the senior
indebtedness is paid in full, any payment or distribution to which holders of
subordinated debt securities would be entitled but for the subordination
provisions of the subordinated indenture will be made to holders of the senior
indebtedness. (Section 14.03 of Subordinated Indenture) If a distribution is
made to holders of subordinated debt securities that, due to the subordination
provisions, should not have been made to them, those holders of subordinated
debt securities are required to pay it over to the holders of the senior
indebtedness or their representatives or trustees, as their interests may
appear. (Section 14.03 of Subordinated Indenture)
As a result of the subordination provisions contained in the
subordinated indenture, in the event of our insolvency, our creditors who are
holders of senior indebtedness may recover more, ratably, than the holders of
subordinated debt securities.
DESCRIPTION OF COMMON STOCK
We are authorized to issue up to 100,000,000 shares of capital stock
consisting of one class only, designated as "common stock" with a par value of
$1.00 per share. As of September 30, 1999, 26,780,348 shares of our common stock
were issued and outstanding.
The outstanding shares of our common stock are, and any additional
shares which we may offer will be, listed on the New York Stock Exchange under
the symbol "WPS."
Dividend And Liquidation Rights
All shares of our common stock will participate equally with respect to
dividends and rank equally upon liquidation, subject to the rights of holders of
any prior ranking stock which our shareholders may authorize in the future. In
the event of our liquidation, dissolution or winding up, the owners of our
common stock are entitled to receive pro rata the assets and funds remaining
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after satisfaction of all of our creditors and payment of all amounts to which
owners of prior ranking stock, if any, then outstanding may be entitled.
Voting Rights
Except as otherwise described in the immediately following paragraphs
and under "Certain Statutory and Other Provisions" below, every holder of our
common stock has one vote for each share.
Our shareholders do not have cumulative voting rights. As a result, the
holders of shares entitled to exercise more than 50% of the voting power of
shares entitled to vote, represented at a meeting at which a majority of the
shares entitled to vote is represented, are entitled to elect all of the
directors to be elected at the meeting. Under our articles of incorporation and
by-laws, our board of directors is divided into three classes. One class is
elected each year for a three-year term.
Provisions of Our Articles of Incorporation with Possible Anti-takeover Effects
In addition to the provisions of our articles of incorporation and
by-laws dividing our board of directors into three classes, certain other
provisions of our articles of incorporation may have the effect of delaying,
deferring or preventing a change in control of our company.
Article 5 of our articles of incorporation provides that, subject to
the exception discussed below, a director may be removed only for cause by the
affirmative vote of shareholders possessing a majority of the voting power of
the then outstanding shares of voting stock. As defined in article 5, "cause"
exists only if the director whose removal is proposed has been convicted of a
felony by a court of competent jurisdiction and such conviction is no longer
subject to direct appeal or such director has been adjudged to be liable for
negligence or misconduct in the performance of his duty to us in a matter which
has a materially adverse effect on our business, and such adjudication is no
longer subject to direct appeal. Article 5 also provides for the removal of a
director by the shareholders without cause when such removal is recommended by
the "requisite vote" of the directors and approved by the affirmative vote of
shareholders possessing a majority of the voting power of the then outstanding
shares of voting stock. Our articles of incorporation define the term "requisite
vote" as the affirmative vote of at least two-thirds of the directors then in
office plus one director. Unless "cause" is established or removal is
recommended by the requisite vote of the directors, a director may not be
removed from office even if shareholders possessing a majority of the voting
power favor such action. Additionally, pursuant to article 5, vacancies on our
board of directors, including those resulting from the removal of a director,
may be filled for the unexpired portion of the director's term by the majority
vote of the remaining members of the board.
Article 5 of our articles of incorporation provides that those sections
of Article III of our by-laws which set forth the general powers, number,
qualifications and classification of directors may be amended or repealed only
by the affirmative vote of shareholders possessing at least 75% of the voting
power of the then outstanding shares of our common stock generally possessing
voting rights in the election of directors, or by the requisite vote of the
directors. Article 5 of our articles provides that article 5 may itself be
amended or repealed only by the affirmative vote of
17
<PAGE>
shareholders possessing at least 75% of the voting power of the then outstanding
shares of our common stock generally possessing voting rights in the election of
directors.
Statutory Provisions with Possible Anti-takeover Effects
Section 180.1150 of the Wisconsin Business Corporation Law provides
that the voting power of shares of an "issuing public corporation," which
includes our company, which are held by any person holding in excess of 20% of
the voting power in the election of directors of the issuing public
corporation's shares shall be limited to 10% of the full voting power of such
excess shares. This statutory voting restriction will not apply to shares
acquired directly from us, to shares acquired in a transaction incident to which
our shareholders vote to restore the full voting power of such shares, either
before or after the acquisition of the shares, and under certain other
circumstances.
Except as may otherwise be provided by law, the required affirmative
vote of shareholders of a Wisconsin corporation for certain significant
corporate actions, including a merger or share exchange with another
corporation, sale of all or substantially all of the corporate property and
assets, or voluntary liquidation, is a majority of all the votes entitled to be
cast on the transaction by each voting group of outstanding shares entitled to
vote on the transaction. Sections 180.1130 through 180.1134 of the Wisconsin
Business Corporation Law provide generally that, in addition to the vote
otherwise required by law or the articles of incorporation of an "issuing public
corporation," business combinations not meeting adequacy-of-price standards
specified in the statute must be approved by (a) the holders of at least 80% of
the votes entitled to be cast and (b) two-thirds of the votes entitled to be
cast by the corporation's outstanding voting shares owned by persons other than
a "significant shareholder" who is a party to the transaction or an affiliate or
associate of such significant shareholder. Section 180.1130 defines "business
combination" to include, subject to certain exceptions, a merger or share
exchange of the issuing public corporation or any of its subsidiaries with, or
the sale or other disposition of substantially all assets of the issuing public
corporation to, any significant shareholder or affiliate thereof. The statute
defines "significant shareholder" generally to mean a person that is the
beneficial owner of 10% or more of the voting power of the outstanding voting
shares of the issuing public corporation.
Sections 180.1140 through 180.1145 of the Wisconsin Business
Corporation Law provides that a "resident domestic corporation," which includes
our company, may not engage in a "business combination" with an "interested
stockholder" within three years after the date on which the interested
stockholder acquired his or her 10% or greater interest, unless the
corporation's board of directors approved the business combination, or the
acquisition of the 10% or greater interest, before the stock acquisition date.
The statute defines "interested stockholder" as a person beneficially owning 10%
or more the aggregate voting power of the stock of such corporation. If the
interested stockholder fails to obtain such approval by the board of directors,
then even after the three-year period, the interested stockholder may complete a
business combination with the corporation only with the approval of the holders
of a majority of the voting stock not beneficially owned by the interested
stockholder, unless the combination satisfies certain adequacy-of-price
standards intended to provide a fair price for shares held by non-interested
shareholders.
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Section 196.795 of the Wisconsin statutes states that no person may
hold or acquire directly or indirectly more than 10% of the outstanding voting
securities of a public utility holding company with the unconditional power to
vote such securities unless the Public Service Commission of Wisconsin
determines, after investigation and an opportunity for hearing, that such
holding or acquisition is in the best interests of utility customers, investors
and the public. Section 196.795 of the Wisconsin statutes applies to our
company.
The sections of the Wisconsin law described in the preceding paragraphs
and certain provisions of our articles and by-laws, could have the effect, among
others, of discouraging takeover proposals for our company or impeding a
business combination between us and one of our major shareholders.
Preemptive Rights; Common Stock Purchase Rights
No holder of our common stock has any preemptive or subscription rights
to acquire shares of our common stock except for the common stock purchase
rights attached to each share of our common stock.
On December 12, 1996, our board of directors approved the issuance to
shareholders as of December 16, 1996, of a dividend of one right for each
outstanding share of our common stock. A right will also attach to each share of
our common stock which we may offer pursuant to this prospectus and a prospectus
supplement. These rights are not presently exercisable, but ten days after a
person or group acquires 15% or more of our common stock or ten business days
(subject to extension) after a person or group announces a tender offer to
acquire at least 15% of our common stock, the rights will become exercisable.
These rights will entitle each holder of our common stock to purchase one share
of our authorized but unissued common stock for each right. The exercise price
of each right is $85. Upon the acquisition by any person or group of 15% or more
of our common stock, each right, other than rights held by an acquiring party,
will entitle the holder to purchase, at the exercise price, shares of our common
stock having a market value of two times the exercise price. The agreement
setting forth the terms of the rights excludes from its effect the inadvertent
acquisition of 15% or more of our common stock, provided there is prompt
divestment to less than 15%. We may redeem the rights or may, under certain
circumstances, exchange the rights for shares of our common stock, all as
provided and subject to the limitations set forth in the agreement setting forth
the terms of the rights; otherwise, such rights expire on December 11, 2006.
The rights have anti-takeover effects. The rights will cause
substantial dilution to a person who attempts to acquire control of our company
without the prior approval of our board of directors. The rights will not affect
a transaction approved by our board of directors, because our board has the
power to redeem the rights in connection with a transaction that it approves.
Conversion Rights, Redemption Provisions and Sinking Fund Provisions.
Our common stock is not convertible, is not redeemable and has no
sinking fund.
19
<PAGE>
Liability to Further Calls or to Assessment
The shares of our common stock which we may offer pursuant to this
prospectus and a prospectus supplement will, upon payment of the purchase price,
be fully-paid and non-assessable by us, except for certain statutory personal
liability which may be imposed upon shareholders under Section 180.0622(2)(b) of
the Wisconsin Business Corporation Law. The substantially identical predecessor
to that statute has been judicially interpreted to mean that shareholders of a
Wisconsin corporation are subject to personal liability, up to an amount equal
to the consideration for which their shares were issued (instead of the
aggregate par value in the case of shares with par value, as the statute
states), for all debts owing to employees of the corporation for services
performed for the corporation, but not exceeding six months service in any one
case.
Restriction on Dividends Payable by Wisconsin Public Service Corporation
We are a holding company, and our ability to pay dividends is largely
dependent upon the ability of our subsidiaries to pay dividends to us. The
Public Service Commission of Wisconsin has by order restricted our principal
subsidiary Wisconsin Public Service Corporation to paying normal dividends on
its common stock of no more than 109% of the previous year's common stock
dividend. The Public Service Commission of Wisconsin also requires Wisconsin
Public Service Corporation to maintain a capital structure (i.e., the
percentages by which each of common stock, preferred stock and debt constitute
the total capital invested in a utility) which has a common equity range of 50%
to 54%. Each of these limitations may be modified by a future order of the
Public Service Commission of Wisconsin. Our right to receive dividends on the
common stock of Wisconsin Public Service Corporation is also subject to the
prior rights of that corporation's preferred shareholders and to provisions in
that corporation's articles of incorporation which limit the amount of common
stock dividends which that corporation may pay if its common stock and common
stock surplus accounts constitute less than 25% of its total capitalization.
20
<PAGE>
PLAN OF DISTRIBUTION
- We may sell the securities:
- through underwriters,
- through agents, or
- directly to a limited number of institutional purchasers or to
a single purchaser.
The prospectus supplement will set forth the terms of the offering of
the securities, including the following:
- the name or names of any underwriters;
- the purchase price and the proceeds we will receive from the
sale;
- any underwriting discounts and other items constituting
underwriters' compensation;
- any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers; and
- any securities exchanges on which the securities of the series
may be listed.
If underwriters are used in the sale, the securities will be acquired
by the underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. The
securities may be either offered to the public through underwriting syndicates
represented by managing underwriters or by underwriters without a syndicate. The
obligations of the underwriters to purchase securities will be subject to
conditions precedent and the underwriters will be obligated to purchase all the
securities of a series if any are purchased. Any initial public offering price
and any discounts or concessions allowed or reallowed or paid to dealers may be
changed from time to time.
We may sell Securities directly or through agents designated by us from
time to time. The applicable prospectus supplement will name any agent involved
in the offer or sale of the securities, and will set forth any commissions
payable by us to that agent. Unless otherwise indicated in the prospectus
supplement, any agent will be acting on a best efforts basis for the period of
its appointment.
We may authorize agents or underwriters to solicit offers by certain
types of institutions to purchase securities from us at the public offering
price set forth in the prospectus supplement pursuant to delayed delivery
contracts. These contracts will provide for payment and delivery on a specified
date in the future. The conditions to these contracts and the commissions
payable for solicitation of such contracts will be set forth in the applicable
prospectus supplement.
21
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Agents and underwriters may be entitled to indemnification by us
against civil liabilities arising out of this prospectus, including liabilities
under the Securities Act of 1933, or to contribution with respect to payments
which the agents or underwriters may be required to make relating to those
liabilities. Agents and underwriters may be customers of, engage in transactions
with, or perform services for, us in the ordinary course of business.
Each series of debt securities will be a new issue of securities with
no established trading market. Any underwriter may make a market in the
securities, but will not be obligated to do so and may discontinue any market
making at any time without notice. No assurance can be given as to the liquidity
of the trading market for any securities.
LEGAL OPINIONS
Foley & Lardner, 777 East Wisconsin Avenue, Milwaukee, Wisconsin 53202,
our counsel, will pass upon the validity of the securities offered pursuant to
this prospectus and the prospectus supplements.
EXPERTS
The audited financial statements and schedules incorporated in this
prospectus by reference to our Annual Report on Form 10-K for the year ended
December 31, 1998 have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their reports with respect thereto and are included
in this prospectus upon the authority of said firm as experts in giving such
reports.
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$____,000,000
WPS RESOURCES CORPORATION
MEDIUM-TERM NOTES
-------------------------
PROSPECTUS SUPPLEMENT
____________, 1999
-------------------------
----------------------------------------
----------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following statement sets forth the estimated amounts of expenses,
other than underwriting discounts, to be borne by us in connection with the
offering described in this Registration Statement:
Securities and Exchange Commission Registration Fee.......... $ 111,200
Trustee's Fees............................................... 1,500
Printing and Engraving Expenses.............................. 100,000
Rating Agency Fees........................................... 50,000
Accounting Fees and Expenses................................. 35,000
Legal Fees and Expenses...................................... 125,000
Blue Sky and Legal Investment Law Fees and Expenses.......... 15,000
Listing Fee.................................................. 40,000
Miscellaneous Expenses....................................... 2,300
----------
Total Expenses......................................... $ 480,000
==========
Item 15. Indemnification of Directors and Officers.
Pursuant to the Wisconsin Business Corporation Law and Article VI of
the By-laws of the registrant, directors and officers of the registrant are
entitled to mandatory indemnification from us against certain liabilities and
expenses to the extent such officers or directors are successful on the merits
or otherwise in connection with a proceeding, unless it is determined that the
director or officer breached or failed to perform his or her duties to the
registrant and such breach or failure constituted: (a) a willful failure to deal
fairly with the registrant or its shareholders in connection with a matter in
which the director or officer had a material conflict of interest; (b) a
violation of the criminal law unless the director or officer had reasonable
cause to believe his or her conduct was lawful or had no reasonable cause to
believe his or her conduct was unlawful; (c) a transaction from which the
director or officer derived an improper personal profit (unless such profit is
immaterial under the circumstances); or (d) willful misconduct. It should also
be noted that the Wisconsin Business Corporation Law specifically states that it
is the policy of Wisconsin to require or permit indemnification in connection
with a proceeding involving securities regulation to the extent required or
permitted as described above. Additionally, under the Wisconsin Business
Corporation Law, directors of the registrant are not subject to personal
liability to the registrant, its shareholders or any person asserting rights on
behalf of the registrant or its shareholders for certain breaches or failures to
perform any duty resulting solely from their status as directors or officers
except in circumstances paralleling those in subparagraphs (a) through (d)
outlined above.
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The indemnification described above may be broad enough to cover
liabilities under the Securities Act of 1933. Officers and directors of the
registrant would also be indemnified by the underwriters or agents for certain
claims under the Securities Act of 1933 pursuant to the terms of the proposed
form of underwriting agreement and agency agreement filed herewith. The
registrant has purchased insurance permitted by the Wisconsin Business
Corporation Law on behalf of its officers and directors which may cover
liabilities under the Securities Act of 1933.
Item 16. EXHIBITS
(1)(a) Proposed Form of Underwriting Agreement (to be filed as exhibit to
report pursuant to Section 3(a) or 15(d) of the Securities Exchange
Act of 1934 or as exhibit to an amendment to this registration
statement).
(1)(b) Proposed Form of Agency Agreement (to be filed as exhibit to report
pursuant to Section 3(a) or 15(d) of the Securities Exchange Act of
1934 or as exhibit to an amendment to this registration
statement).
(3) (a) By-laws (Incorporated by reference to Exhibit 3B-1 to Quarterly
Report on Form 10-Q for the quarterly period ending June 30, 1999
[File No. 1-11227])
(4)(a) Restated Articles of Incorporation (Incorporated by reference
Appendix B to Amendment No. 1 to Registration Statement on Form S-4,
filed February 28, 1994 [Reg. No. 33-52199]).
(4)(b) Senior Indenture dated as of October 1, 1999, between us and Firstar
Bank, National Association as Trustee.
(4)(c) Form of Subordinated Indenture.
(4)(d) Forms of Supplemental Indentures to Senior Indenture (to be filed as
exhibits to reports pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 or as exhibits to an amendment to
this registration statement).
(4)(e) Forms of Supplemental Indentures to Subordinated Indenture (to be
filed as exhibits to reports pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 or as exhibits to an amendment to
this registration statement).
(4)(f) Forms of Debt Securities (to be filed as exhibits to reports pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 or
as exhibits to an amendment to this registration statement).
(4)(g) Rights Agreement dated December 12, 1996, between WPS Resources
Corporation and Firstar Trust Company (Incorporated by reference to
Exhibit 4-1 to Form 8-A, filed December 13, 1996 [File No. 1-11337]).
II-2
<PAGE>
(5) Opinion of Foley & Lardner
(12) Computation of Ratios of Earnings to Fixed Charges.
(23)(a) Consent of Independent Accountants.
(23)(b) Consent of Counsel (included in Exhibit 5).
(24)(a) Powers of Attorney.
(25)(a) Statement of Eligibility and Qualification on Form T-1 of Firstar
Bank, National Association to act as Trustee under the Senior
Indenture dated October 1, 1999.
(25)(b) Statement of Eligibility and Qualification on Form T-1 of the
Subordinated Trustee to Act as Trustee under the Subordinated
Indenture (to be filed as an exhibit to a report pursuant to Section
13(a)or 15(d) of the Securities Exchange Act of 1934 or as an exhibit
to an amendment to this registration statement).
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement (other than as
provided in the proviso and instructions to item 512(a) of Regulation S-K:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement.
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
II-3
<PAGE>
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at the time shall be deemed to be the initial bona
fide offering thereof.
(3) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(4) that, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in this registration statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(5) to file an application for the purpose of determining the
eligibility of the trustee to act under subsection (a) of Section 310 of the
Trust Indenture Act in accordance with the rules and regulations prescribed by
the Commission under Section 305(b)(2) of the Trust Indenture Act.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-4
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, on the 6th day of October, 1999.
WPS RESOURCES CORPORATION
By: /s/ Larry L. Weyers
Larry L. Weyers
Chairman, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Name Capacity
/s/ Larry L. Weyers Chairman, President, Chief Executive
Larry L. Weyers Officer and Director*
/s/ Daniel P. Bittner Vice President and Chief Financial
Daniel P. Bittner Officer*
/s/ Diane L. Ford Vice President, Controller and Chief
Diane L. Ford Accounting Officer *
A. Dean Arganbright Director
Michael S. Ariens Director
Richard A. Bemis Director
Daniel A. Bollom Director
Clarence R. Fischer Director
Robert C. Gallagher Director
Kathryn Hasselblad-Pascale Director
James L. Kemerling Director
By: /s/ Larry L. Weyers
Larry L. Weyers
Attorney-in-Fact*
* Each of the above signatures is affixed as of October 6, 1999.
II-5
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EXHIBIT INDEX
The following documents are filed as a part of the Registration Statement
or are incorporated by reference.
(1)(a) Proposed Form of Underwriting Agreement (to be filed as exhibit to
report pursuant to Section 3(a) or 15(d) of the Securities Exchange
Act of 1934 or as exhibit to an amendment to this registration
statement).
(1)(b) Proposed Form of Agency Agreement (to be filed as exhibit to report
pursuant to Section 3(a) or 15(d) of the Securities Exchange Act of
1934 or as exhibit to an amendment to this registration
statement).
(3) (a) By-laws (Incorporated by reference to Exhibit 3B-1 to Quarterly
Report on Form 10-Q for the quarterly period ending June 30, 1999
[File No. 1-11227])
(4)(a) Restated Articles of Incorporation (Incorporated by reference
Appendix B to Amendment No. 1 to Registration Statement on Form S-4,
filed February 28, 1994 [Reg. No. 33-52199]).
(4)(b)* Senior Indenture dated as of October 1, 1999, between us and Firstar
Bank, National Association as Trustee.
(4)(c)* Form of Subordinated Indenture.
(4)(d) Forms of Supplemental Indentures to Senior Indenture (to be filed as
exhibits to reports pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 or as exhibits to an amendment to
this registration statement).
(4)(e) Forms of Supplemental Indentures to Subordinated Indenture (to be
filed as exhibits to reports pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 or as exhibits to an amendment to
this registration statement).
(4)(f) Forms of Debt Securities (to be filed as exhibits to reports pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 or
as exhibits to an amendment to this registration statement).
(4)(g) Rights Agreement dated December 12, 1996, between WPS Resources
Corporation and Firstar Trust Company (Incorporated by reference to
Exhibit 4-1 to Form 8-A, filed December 13, 1996 [File No. 1-11337]).
(5)* Opinion of Foley & Lardner
(12)* Computation of Ratios of Earnings to Fixed Charges.
(23)(a)* Consent of Independent Accountants.
(23)(b) Consent of Counsel (included in Exhibit 5).
(24)(a)* Powers of Attorney.
(25)(a)* Statement of Eligibility and Qualification on Form T-1 of Firstar
Bank, National Association to act as Trustee under the Senior
Indenture dated October 1, 1999.
(25)(b) Statement of Eligibility and Qualification on Form T-1 of the
Subordinated Trustee to Act as Trustee under the Subordinated
Indenture (to be filed as an exhibit to a report pursuant to Section
13(a)or 15(d) of the Securities Exchange Act of 1934 or as an exhibit
to an amendment to this registration statement).
- ----------------
* Filed herewith.
EXHIBIT 4(b)
- --------------------------------------------------------------------------------
WPS RESOURCES CORPORATION
AS ISSUER
TO
FIRSTAR BANK, NATIONAL ASSOCIATION
AS TRUSTEE
----------------------
INDENTURE
SENIOR DEBT SECURITIES
DATED AS OF OCTOBER 1, 1999
----------------------
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
PAGE
RECITALS OF THE COMPANY.......................................................1
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION............................................2
SECTION 1.01. Definitions................................................2
(a) "ACT,".....................................................2
(b) "AFFILIATE"................................................2
(c) "AUTHENTICATING AGENT".....................................2
(d) "BANKRUPTCY LAW"...........................................2
(e) "BOARD OF DIRECTORS".......................................3
(f) "BOARD RESOLUTION".........................................3
(g) "BUSINESS DAY,"............................................3
(h) "COMMISSION"...............................................3
(i) "COMPANY"..................................................3
(j) "COMPANY REQUEST"or "COMPANY ORDER"........................3
(k) "CORPORATE TRUST OFFICE"...................................3
(l) "COVENANT DEFEASANCE"......................................4
(m) "CUSTODIAN"................................................4
(n) "DEFAULT"..................................................4
(o) "DEFAULTED INTEREST".......................................4
(p) "DEFEASANCE"...............................................4
(q) "DEPOSITARY"...............................................4
(r) "DOLLARS"and "$"...........................................4
(s) "EVENT OF DEFAULT".........................................4
(t) "EXCHANGE ACT".............................................4
(u) "GAAP".....................................................4
(v) "GLOBAL SECURITY"..........................................5
(w) "HOLDER"or "SECURITY HOLDER"...............................5
(x) "INDEBTEDNESS".............................................5
(y) "INDENTURE"................................................5
(z) "INTEREST,"................................................5
(aa) "INTEREST PAYMENT DATE,"...................................5
(bb) "MATURITY,"................................................5
(cc) "OFFICER"..................................................5
(dd) "OFFICER'S CERTIFICATE"....................................6
(ee) "OPINION OF COUNSEL".......................................6
(ff) "ORIGINAL ISSUE DISCOUNT SECURITY".........................6
(gg) "OUTSTANDING,".............................................6
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PAGE
(hh) "PAYING AGENT".............................................7
(ii) "PERSON"...................................................7
(jj) "PLACE OF PAYMENT,"........................................7
(kk) "PREDECESSOR SECURITIES"...................................7
(ll) "REDEMPTION DATE,".........................................7
(mm) "REDEMPTION PRICE,"........................................7
(nn) "REGULAR RECORD DATE"......................................7
(oo) "RESPONSIBLE OFFICER,".....................................8
(pp) "SECURITIES"...............................................8
(qq) "SECURITY REGISTER"and "SECURITY REGISTRAR"................8
(rr) "SPECIAL RECORD DATE"......................................8
(ss) "STATED MATURITY,".........................................8
(tt) "SUBSIDIARY"...............................................8
(uu) "TRUST INDENTURE ACT"......................................8
(vv) "TRUSTEE"..................................................9
(ww) "U.S. GOVERNMENT OBLIGATIONS"..............................9
(xx) "VICE PRESIDENT,"..........................................9
SECTION 1.02. Compliance Certificates and Opinions.......................9
SECTION 1.03. Form of Documents Delivered to Trustee.....................10
SECTION 1.04. Acts of Holders............................................10
SECTION 1.05. Notices, Etc., to Trustee and Company......................11
SECTION 1.06. Notice to Holders; Waiver..................................12
SECTION 1.07. Conflict with Trust Indenture Act..........................12
SECTION 1.08. Effect of Headings and Table of Contents...................13
SECTION 1.09. Successors and Assigns.....................................13
SECTION 1.10. Separability Clause........................................13
SECTION 1.11. Benefits of Indenture......................................13
SECTION 1.12. Governing Law..............................................13
SECTION 1.13. Legal Holidays.............................................13
SECTION 1.14. No Recourse Against Others.................................13
ARTICLE II SECURITY FORMS.....................................................14
SECTION 2.01. Forms Generally............................................14
SECTION 2.02. Form of Trustee's Certificate of Authentication............14
SECTION 2.03. Securities Issuable in the Form of a Global Security.......14
SECTION 2.04. CUSIP Number...............................................16
SECTION 2.05. Payment of Securities......................................17
ARTICLE III THE SECURITIES....................................................18
SECTION 3.01. Amount Unlimited; Issuable in Series.......................18
SECTION 3.02. Denominations..............................................20
SECTION 3.03. Execution, Authentication, Delivery and Dating.............20
SECTION 3.04. Temporary Securities.......................................22
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PAGE
SECTION 3.05. Registration, Registration of Transfer and Exchange........22
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities...........23
SECTION 3.07. Payment of Interest; Interest Rights Preserved.............24
SECTION 3.08. Persons Deemed Owners......................................25
SECTION 3.09. Cancellation...............................................26
SECTION 3.10. Computation of Interest....................................26
ARTICLE IV SATISFACTION AND DISCHARGE.........................................27
SECTION 4.01. Satisfaction and Discharge of Indenture....................27
SECTION 4.02. Application of Trust Money.................................28
ARTICLE V REMEDIES............................................................29
SECTION 5.01. Events of Default..........................................29
SECTION 5.02. Acceleration of Maturity and Rescission....................30
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement
by Trustee.................................................31
SECTION 5.04. Trustee May File Proofs of Claim...........................32
SECTION 5.05. Trustee May Enforce Claims Without Possession of
Securities.................................................32
SECTION 5.06. Application of Money Collected.............................33
SECTION 5.07. Limitation on Suits........................................33
SECTION 5.08. Unconditional Right of Holders to Receive Principal,
Premium and Interest.......................................34
SECTION 5.09. Restoration of Rights and Remedies.........................34
SECTION 5.10. Rights and Remedies Cumulative.............................34
SECTION 5.11. Delay or Omission Not Waiver...............................34
SECTION 5.12. Control by Holders.........................................35
SECTION 5.13. Waiver of Past Defaults....................................35
SECTION 5.14. Undertaking for Costs......................................35
SECTION 5.15. Waiver of Stay or Extension................................36
ARTICLE VI THE TRUSTEE........................................................37
SECTION 6.01. Certain Duties and Responsibilities of the Trustee.........37
SECTION 6.02. Notice of Defaults.........................................37
SECTION 6.03. Certain Rights of Trustee..................................37
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities.....38
SECTION 6.05. May Hold Securities........................................39
SECTION 6.06. Money Held in Trust........................................39
SECTION 6.07. Compensation and Reimbursement.............................39
SECTION 6.08. Disqualification; Conflicting Interests....................40
SECTION 6.09. Corporate Trustee Required; Eligibility....................40
SECTION 6.10. Resignation and Removal; Appointment of Successor..........40
SECTION 6.11. Acceptance of Appointment by Successor.....................42
-iii-
<PAGE>
PAGE
SECTION 6.12. Merger, Conversion, Consolidation or Succession to
Business...................................................43
SECTION 6.13. Preferential Collection of Claims Against Company..........43
SECTION 6.14. Appointment of Authenticating Agent........................43
ARTICLE VII HOLDERS'LISTS AND REPORTS BY TRUSTEE AND COMPANY..................46
SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders..46
SECTION 7.02. Preservation of Information; Communications to Holders.....46
SECTION 7.03. Reports by Trustee.........................................47
SECTION 7.04. Reports by Company.........................................48
ARTICLE VIII CONSOLIDATION, MERGER, LEASE, SALE OR TRANSFER...................49
SECTION 8.01. Then Company May Merge, Etc................................49
SECTION 8.02. Opinion of Counsel.........................................49
SECTION 8.03. Successor Corporation Substituted..........................49
ARTICLE IX SUPPLEMENTAL INDENTURES............................................50
SECTION 9.01. Supplemental Indentures Without Consent of Holders.........50
SECTION 9.02. Supplemental Indentures with Consent of Holders............51
SECTION 9.03. Execution of Supplemental Indentures.......................52
SECTION 9.04. Effect of Supplemental Indentures..........................52
SECTION 9.05. Conformity with Trust Indenture Act........................52
SECTION 9.06. Reference in Securities to Supplemental Indentures.........52
ARTICLE X COVENANTS...........................................................53
SECTION 10.01. Payments of Principal and Interest.........................53
SECTION 10.02. Maintenance of Office or Agency............................53
SECTION 10.03. Corporate Existence........................................53
SECTION 10.04. Payment of Taxes and Other Claims..........................53
SECTION 10.05. Maintenance of Properties..................................54
SECTION 10.06. Certificates Respecting Defaults...........................54
SECTION 10.07. Money for Securities Payments to Be Held in Trust..........54
SECTION 10.08. Restrictions on Sales of Voting Common Stock of
Wisconsin Public Service Corporation.......................55
SECTION 10.09. Restrictions on Liens......................................56
ARTICLE XI REDEMPTION OF SECURITIES...........................................58
SECTION 11.01. Applicability of Article...................................58
SECTION 11.02. Election to Redeem; Notice to Trustee......................58
SECTION 11.03. Election by Trustee of Securities to Be Redeemed...........58
SECTION 11.04. Notice of Redemption.......................................59
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<PAGE>
PAGE
SECTION 11.05. Deposit of Redemption Price................................59
SECTION 11.06. Securities Payable on Redemption Date......................60
SECTION 11.07. Securities Redeemed in Part................................60
ARTICLE XII SINKING FUNDS.....................................................61
SECTION 12.01. Applicability of Article...................................61
SECTION 12.02. Satisfaction of Sinking Fund Payments with Securities......61
SECTION 12.03. Redemption of Securities for Sinking Fund..................61
ARTICLE XIII DEFEASANCE AND COVENANT DEFEASANCE...............................62
SECTION 13.01. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance..........................62
SECTION 13.02. Defeasance and Discharge...................................62
SECTION 13.03. Covenant Defeasance........................................62
SECTION 13.04. Conditions to Defeasance or Covenant Defeasance............63
SECTION 13.05. Deposited Money and Government Obligations To Be Held
In Trust...................................................64
ARTICLE XIV MISCELLANEOUS.....................................................66
SECTION 14.01. Miscellaneous..............................................66
-v-
<PAGE>
WPS RESOURCES CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of October 1, 1999
Trust Indenture
Act Section . Indenture Section
Section 310 (a) (1)........................................... 6.09
(a) (2)........................................... 6.09
(a) (3)........................................... Not Applicable
(a) (4)........................................... Not Applicable
(a) (5) .......................................... 6.09
(b)............................................... 6.08, 6.10
Section 311 (a)............................................... 6.13
(b)............................................... 6.13
Section 312 (a)............................................... 7.01(a), 7.02(a)
(b)............................................... 7.02(b)
(c)............................................... 7.02(c)
Section 313 (a)............................................... 7.03(a)
(b)............................................... 7.03(b)
(c)............................................... 7.03(a), 7.03(b)
(d)............................................... 7.03(b)
Section 314 (a)............................................... 7.04
(b)............................................... Not Applicable
(c) (1)........................................... 1.02
(c) (2)........................................... 1.02
(c) (3)........................................... Not Applicable
(d)............................................... Not Applicable
(e)............................................... 1.02
Section 315 (a)............................................... 6.01(a)
(b)............................................... 6.02
(c)............................................... 6.01(b)
(d)............................................... 6.01(c)
(d) (1)........................................... 6.01(a), 6.01(c)
(d) (2)........................................... 6.01(c)
(d) (3)........................................... 6.01(c)
(e)............................................... 5.14
Section 316 (a) (1) (A)....................................... 5.12
(a) (1) (B)....................................... 5.02, 5.13
(a) (2)........................................... Not Applicable
(b)............................................... 5.08
Section 317 (a) (1)........................................... 5.03
(a) (2)........................................... 5.04
(b)............................................... 10.07
Section 318 (a)............................................... 1.07
- -----------------------
NOTE:This reconciliation and tie shall not, for any purpose, be deemed to be a
part of this Indenture.
-vi-
<PAGE>
INDENTURE, dated as of October 1, 1999 between WPS RESOURCES
CORPORATION, a corporation duly organized and existing under the laws of the
State of Wisconsin (herein called the "COMPANY"), having its principal office at
700 North Adams Street, Green Bay, Wisconsin 54301 and Firstar Bank, National
Association, a national banking association organized and existing under and by
virtue of the laws of the United States as Trustee (herein called the "TRUSTEE")
having its corporate trust office at 425 Walnut Street, Sixth Floor, Cincinnati,
Ohio 45202.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its senior
debentures, notes or other evidences of indebtedness (herein called the
"SECURITIES"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, has been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
<PAGE>
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01 Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(4) the word "INCLUDING" (and with correlative meaning "INCLUDE")
means including, without limiting the generality of, any description preceding
such term; and
(5) the words "HEREIN," "HEREOF" and "HEREUNDER" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Seven, are defined in that
Article.
(a) "ACT," when used with respect to any Holder, has the meaning
specified in Section 1.04.
(b) "AFFILIATE" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
(c) "AUTHENTICATING AGENT" means any Person authorized by the Trustee
to act on behalf of the Trustee to authenticate Securities.
(d) "BANKRUPTCY LAW" means Title 11, U.S. Code or any similar federal
or state law for the relief of debtors.
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<PAGE>
(e) "BOARD OF DIRECTORS" means the board of directors of the Company;
provided, however, that when the context refers to actions or resolutions of the
Board of Directors, then the term "Board of Directors" shall also mean any duly
authorized committee of the Board of Directors of the Company or Officer
authorized to act with respect to any particular matter to exercise the power of
the Board of Directors of the Company.
(f) "BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
(g) "BUSINESS DAY," when used with respect to any Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment are authorized or obligated
by law or regulation to close.
(h) "COMMISSION" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
(i) "COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
(j) "COMPANY REQUEST" or "COMPANY ORDER" means a written request or
order signed in the name of the Company by its Chairman of the Board, its
President or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Controller, an Assistant Controller, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
(k) "CORPORATE TRUST OFFICE" means the principal office of the Trustee
at which at any time its corporate trust business shall be administered, which
office at the date hereof is located at 425 Walnut Street, Sixth Floor,
Cincinnati, Ohio 45202, or such other address as the Trustee may designate from
time to time by notice to the Holders and the Company, or the principal
corporate trust office of any successor Trustee (or such other address as a
successor Trustee may designate from time to time by notice to the Holders and
the Company).
(l) "COVENANT DEFEASANCE" has the meaning specified in Section 13.03.
(m) "CUSTODIAN" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
- 3 -
<PAGE>
(n) "DEFAULT" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
(o) "DEFAULTED INTEREST" has the meaning specified in Section 3.07.
(p) "DEFEASANCE" has the meaning specified in Section 13.02.
(q) "DEPOSITARY" shall mean, unless otherwise specified pursuant to
Section 3.01 hereof, The Depository Trust Company, New York, New York, or any
successor thereto registered or qualified as a clearing agency under the
Securities Exchange Act of 1934, or other applicable statute or regulation.
(r) "DOLLARS" and "$" means lawful money of the United States of
America.
(s) "EVENT OF DEFAULT" has the meaning specified in Section 5.01.
(t) "EXCHANGE ACT" means the Securities and Exchange Act of 1934, as
amended from time to time, and the rules and regulations promulgated thereunder.
(u) "GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect on the date hereof, applied on a basis
consistent with those used in the preparation of any financial statements
referred to herein, unless otherwise stated herein.
(v) "GLOBAL SECURITY" shall mean a Security that, pursuant to Sections
3.01 and 3.03 hereof, is issued to evidence Securities, that is delivered to the
Depositary or pursuant to the instructions of the Depositary and that shall be
registered in the name of the Depositary or its nominee.
(w) "HOLDER" or "SECURITY HOLDER" means a Person in whose name a
Security is registered in the Security Register.
(x) "INDEBTEDNESS"for purposes of Section 10.09 has the meaning
specified therein.
(y) "INDENTURE" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 3.01.
(z) "INTEREST," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
(aa) "INTEREST PAYMENT DATE," when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
- 4 -
<PAGE>
(bb) "MATURITY," when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
(cc) "OFFICER" means the Chairman of the Board, the Vice-Chairman of
the Board, the President, any Vice President, the Treasurer, any Assistant
Treasurer, the Controller, the Secretary or any Assistant Secretary of the
Company.
(dd) "OFFICER'S CERTIFICATE" means a certificate signed by an Officer
and delivered to the Trustee.
(ee) "OPINION OF COUNSEL" means a written opinion of counsel, who may
be an employee of or counsel for the Company, and who shall be reasonably
acceptable to the Trustee.
(ff) "ORIGINAL ISSUE DISCOUNT SECURITY" means any Security, which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 5.02.
(gg) "OUTSTANDING," when used with respect to Securities or Securities
of any series, means, as of the date of determination, all such Securities
theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the Holders of
such Securities; provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been
made;
(iii) Securities which have been paid pursuant to Section 3.06 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company; and
(iv) Securities which have been defeased pursuant to Section
13.02;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (a) the principal
amount of an Original Issue Discount Security
- 5 -
<PAGE>
that shall be deemed to be Outstanding for such purposes shall be that portion
of the principal amount thereof that could be declared to be due and payable
upon the occurrence of an Event of Default and the continuation thereof pursuant
to the terms of such Original Issue Discount Security as of the date of such
determination and (b) Securities owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledge
establishes to the satisfaction of the Trustee the pledge's right so to act with
respect to such Securities and that the pledgee is not the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other
obligor.
(hh) "PAYING AGENT" means any Person authorized by the Company to pay
the principal of (and premium, if any) or interest on any Securities on behalf
of the Company. The Company may act as Paying Agent with respect to any
Securities issued hereunder.
(ii) "PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
(jj) "PLACE OF PAYMENT," when used with respect to the Securities of
any series, means the place or places where the principal of (and premium, if
any) and interest on the Securities of that series are payable as specified as
contemplated by Section 3.01.
(kk) "PREDECESSOR SECURITIES" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for purposes of this definition, any Security
authenticated and delivered under Section 3.06 in lieu of a destroyed, lost or
stolen Security shall be deemed to evidence the same debt as the destroyed, lost
or stolen security.
(ll) "REDEMPTION DATE," when used with respect to any Security of any
series to be redeemed, means the date fixed for such redemption by or pursuant
to this Indenture.
(mm) "REDEMPTION PRICE," when used with respect to any Security of any
series to be redeemed, means the price at which it is to be redeemed pursuant to
this Indenture.
(nn) "REGULAR RECORD DATE" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 3.01.
(oo) "RESPONSIBLE OFFICER," when used with respect to the Trustee,
means any vice president, any assistant vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any senior trust
- 6 -
<PAGE>
officer, any trust officer or assistant trust officer, the controller or any
assistant controller or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
(pp) "SECURITIES" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
(qq) "SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective
meanings specified in Section 3.05.
(rr) "SPECIAL RECORD DATE" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 3.07.
(ss) "STATED MATURITY," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
(tt) "SUBSIDIARY" of a Person means (i) any corporation of which more
than 50% of the outstanding securities having ordinary voting power shall at the
time be owned or controlled, directly or indirectly, by such Person or by one or
more of its Subsidiaries or by such Person and one or more of its Subsidiaries,
or (ii) any partnership, association, joint venture or similar business
organization of which more than 50% of the ownership interests having ordinary
voting power shall at the time be so owned or controlled. Unless otherwise
expressly provided, all references herein to a "Subsidiary" shall mean a
Subsidiary of the Company.
(uu) "TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this Indenture was executed;
provided, however, that in the event that such Act is amended after such date,
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 as so amended.
(vv) "TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
(ww) "U.S. GOVERNMENT OBLIGATIONS" means securities which are (i)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed by the full
faith and credit of the United States of America which,
- 7 -
<PAGE>
in either case, are not callable or redeemable at the option of the issuer
thereof or otherwise subject to prepayment, and shall also include a depository
receipt issued by a New York Clearing House bank or trust company as custodian
with respect to any such U.S. Government Obligation or a specific payment or
interest on or principal of any such U.S. Government Obligation held by such
custodian for the account of the holder of a depository receipt, provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt or
from any amount held by the custodian in respect of the U.S. Government
Obligation or the specific payment of interest on or principal of the U.S.
Government Obligation evidenced by such depository receipt.
(xx) "VICE PRESIDENT," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
SECTION 1.02. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, other than as action permitted
by Sections 2.03 and 7.04, the Company shall furnish to the Trustee an Officer's
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the opinion or each such individual,
such condition or covenant has been complied with.
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<PAGE>
SECTION 1.03. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by a opinion of, any specified Person, it is not necessary that all such
matters be certified by, or covered by the opinion of, only one such Person, or
that they be so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give
an opinion as to such matters in one or several documents.
Any certificate or opinion of an Officer may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such Officer knows, or in the exercise of reasonable care
should know, that the certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an Officer or Officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "ACT" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 5.01) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner, which the Trustee deems sufficient.
- 9 -
<PAGE>
(c) The ownership of Registered Securities shall be proved by the
Security Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(e) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to a Board Resolution, fix in advance a record
date for the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Company
shall have no obligation to do so. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the Holders of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the
record date.
SECTION 1.05. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(i) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee and received by the Trustee at its Corporate Trust
Office, Attention: Corporate Trust Department or
(ii) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this Indenture, attention: Secretary, or at any other
address previously furnished in writing to the Trustee by the Company.
SECTION 1.06. Notice to Holders; Waiver.
Where this Indenture or any Security provides for notice to Holders of
any event, such notice shall be deemed sufficiently given (unless otherwise
herein or in such Security expressly provided) if in writing and mailed,
first-class postage prepaid, to each
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Holder affected by such event, at his address as it appears in the Security
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders or the validity of the
proceedings to which such notice relates. Where this Indenture or any Security
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
SECTION 1.07. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or shall be
excluded, as the case may be.
SECTION 1.08. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.09. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 1.10. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
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SECTION 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 1.12. Governing Law.
This Indenture and the Securities shall be governed by and construed
in accordance with the laws (other than the choice of law provisions) of the
State of Wisconsin.
SECTION 1.13. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal (and premium, if any) need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day or on such other day as may be set out in the Officer's
Certificate pursuant to Section 3.01 at such Place of Payment with the same
force and effect as if made on the Interest Payment Date or Redemption Date, or
at the Stated Maturity, provided that no interest shall accrue for the period
from and after such Interest Payment Date, Redemption Date or Stated Maturity,
as the case may be.
SECTION 1.14. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Securityholder, by accepting
a Security, waives and, releases all such liability. Such waivers and releases
are part of the consideration for the issuance of the Securities.
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ARTICLE II
SECURITY FORMS
SECTION 2.01. Forms Generally.
The Securities of each series shall be in substantially such form as
shall be established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the Officers executing such Securities,
as evidenced by their execution of the Securities. If the form of Securities of
any series is established by action taken pursuant to a Board Resolution, a copy
of an appropriate record of such action shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior
to the delivery of the Company Order contemplated by Section 3.03 for the
authentication and delivery of such Securities.
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
The definitive Securities shall be photocopied, printed, lithographed
or engraved on steel engraved borders or may be produced in any other manner,
all as determined by the Officers executing such Securities, as evidenced by
their execution of such Securities.
SECTION 2.02. Form of Trustee's Certificate of Authentication.
Dated: _______________
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
FIRSTAR BANK, NATIONAL ASSOCIATION
As Trustee
By
-------------------------------------
Authorized Signatory
SECTION 2.03. Securities Issuable in the Form of a Global Security.
(a) If the Company shall establish pursuant to Section 3.01 hereof
that the Securities of a particular series are to be issued in whole or in part
in the form of one or more
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Global Securities, then the Company shall execute and the Trustee shall, in
accordance with Section 3.03 hereof and the Company Order delivered to the
Trustee hereunder, authenticate and deliver such Global Security or Securities,
which (i) represent, shall be denominated in an amount equal to the aggregate
principal amount of, and shall have the same terms as, the outstanding
Securities of such series to be represented by such Global Security or
Securities, (ii) shall be registered in the name of the Depositary or its
nominee, (iii) shall be delivered by the Trustee to the Depositary or pursuant
to the Depositary's instruction and (iv) shall bear a legend substantially to
the following effect: "This Security is a Global Security registered in the name
of the Depositary (referred to herein) or a nominee thereof and, unless and
until it is exchanged in whole or in part for the individual Securities
represented hereby, this Global Security may not be transferred except as a
whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary. Unless this Global Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York), to the Trustee for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment is made to Cede & Co., any transfer, pledge or other use hereof for
value or otherwise by or to any person is wrongful since the registered owner
hereof, Cede & Co., has an interest herein" or such other legend as may be
required by the rules and regulations of the Depositary.
(b) Notwithstanding any other provision of Section 3.05 hereof or of
this Section 2.03, unless the terms of a Global Security expressly permit such
Global Security to be exchanged in whole or in part for individual Securities, a
Global Security may be transferred, in whole but not in part, only as described
in the legend thereto.
(c)(i) If at any time the Depositary for a Global Security notifies
the Company that it is unwilling or unable to continue as Depositary for such
Global Security or if at any time the Depositary for the Global Security shall
no longer be eligible or in good standing under the Exchange Act or other
applicable statute or regulation, the Company shall appoint a successor
Depositary with respect to such Global Security. If a successor Depositary for
such Global Security is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the
Company's election pursuant to Section 3.01(3) hereof shall no longer be
effective with respect to the series of Securities evidenced by such Global
Security and the Company shall execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of individual Securities of
such series in exchange for such Global Security, shall authenticate and
deliver, individual Securities of such series of like tenor and terms in
definitive form in an aggregate principal amount equal to the principal amount
of the Global Security in exchange for such Global Security. The Trustee shall
not be charged with knowledge or notice of the ineligibility of a Depositary
unless a responsible officer assigned to and working in its corporate trustee
administration department shall have actual knowledge thereof.
(ii) The Company may at any time and in its sole discretion determine
that all Outstanding (but not less than all) Securities of a series issued or
issuable
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in the form of one or more Global Securities shall no longer be represented by
such Global Security or Securities. In such event the Company shall execute, and
the Trustee, upon receipt of a Company Order for the authentication and delivery
of individual Securities in exchange for such Global Security, shall
authenticate and deliver individual Securities of like tenor and terms in
definitive form in an aggregate principal amount equal to the principal amount
of such Global Security or Securities in exchange for such Global Security or
Securities.
(iii) In any exchange provided for in any of the preceding two
paragraphs, the Company will execute and the Trustee will authenticate and
deliver individual Securities in definitive registered form in authorized
denominations. Upon the exchange of a Global Security for individual Securities,
such Global Security shall be cancelled by the Trustee. Securities issued in
exchange for a Global Security pursuant to this Section shall be registered in
such names and in such authorized denominations as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver
such Securities to the Depositary for delivery to the persons in whose names
such Securities are so registered, or if the Depositary shall refuse or be
unable to deliver such Securities, the Trustee shall deliver such Securities to
the persons in whose names such Securities are registered, unless otherwise
agreed upon between the Trustee and the Company, in which event the Company
shall cause the Securities to be delivered to the persons in whose names such
Securities are registered.
(d) Neither the Company, the Trustee, any Authenticating Agent nor any
paying agent shall have any responsibility or liability for any aspect of the
records relating to, or payments made on account of, beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interest.
(e) Pursuant to the provisions of this subsection, at the option of
the Trustee and upon 30 days' written notice to the Depositary but not prior to
the first Interest Payment Date of the respective Global Securities of the same
series, the Depositary shall be required to surrender any two or more Global
Securities of the same series which have identical terms, including, without
limitation, identical maturities, interest rates and redemption provisions to
the Trustee, and the Company shall execute and the Trustee shall authenticate
and deliver to, or at the direction of, the Depositary a Global Security of the
same series in principal amount equal to the aggregate principal amount of, and
with all terms identical to, the Global Securities surrendered thereto. The
exchange contemplated in this subsection shall be consummated at least 30 days
prior to any Interest Payment date applicable to any of the Global Securities
surrendered to the Trustee. Upon any exchange of any Global Security, whether
pursuant to this Section or pursuant to Section 3.05 or Section 11.07 hereof,
the aggregate principal amount of the Securities or a series shall be the same
before and after such exchange, after giving effect to any retirement of
Securities of such series.
SECTION 2.04. CUSIP Number.
The Company in issuing Securities of any series may use a "CUSIP"
number, and, if so, the Trustee may use the CUSIP number in notices of
redemption or exchange as a
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convenience to Holders of such series; provided, that any such notice may state
that no representation is made as to the correctness or accuracy of the CUSIP
number printed on the notice or on the Securities of such series, and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Trustee of any
change in the CUSIP number of any series of Securities.
SECTION 2.05. Payment of Securities.
Payment of the principal, interest and premium on all Securities shall
be payable as follows:
(a) On or before 9:30 a.m., New York City time, or such other time as
shall be agreed upon between the Trustee and the Company, of the day on which
payment of principal, interest and premium is due on any Global Security
pursuant to the terms thereof, the Company shall deliver to the Trustee funds
available on such date sufficient to make such payment, by wire transfer of
immediately available funds or by instructing the Trustee to withdraw sufficient
funds from an account maintained by the Company with the Trustee or such other
method as is acceptable to the Trustee. On or before 10:00 a.m., New York City
time, or such other time as shall be agreed upon between the Trustee and the
Depositary, of the day on which any payment of interest is due on any Global
Security (other than at maturity), the Trustee shall pay to the Depositary such
interest in same day funds. On or before 10:00 a.m., New York City time or such
other time as shall be agreed upon between the Trustee and the Depositary, of
the day on which principal, interest payable at maturity and premium, if any, is
due on any Global Security, the Trustee shall deposit with the Depositary the
amount equal to the principal, interest payable at maturity and premium, if any,
by wire transfer into the account specified by the Depositary. As a condition to
the payment, at maturity or upon redemption, of any part of the principal or
interest on and applicable premium of any Global Security, the Depositary shall
surrender, or cause to be surrendered, such Global Security to the Trustee,
whereupon a new Global Security shall be issued to the Depositary pursuant to
Section 3.05 hereof.
(b) With respect to any Security that is not a Global Security,
principal, applicable premium and interest due at the maturity of the Security
shall be payable in immediately available funds when due upon presentation and
surrender of such Security at the corporate trust office of the Trustee or at
the authorized office of any paying agent. Interest on any Security that is not
a Global Security (other than interest payable at maturity) shall be paid by
check mailed to the Holder thereof at such Holder's address as it appears on the
register by check payable in clearinghouse funds; provided that if the Trustee
receives a written request from any Holder of Securities, the aggregate
principal amount of which having the same Interest Payment Date equals or
exceeds $10,000,000, on or before the applicable Regular Record Date for such
Interest Payment Date, interest shall be paid by wire transfer of immediately
available funds to a bank within the continental United States designated by
such Holder in its request or by direct deposit into the account of such Holder
designated by such Holder in its request if such account is maintained with the
Trustee or any paying agent.
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ARTICLE III
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more series.
There shall be established in or pursuant to a Board Resolution, and set forth
in an Officer's Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series:
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of the series pursuant to
Sections 3.04, 3.05, 3.06, 9.06 or 11.07);
(3) whether any Securities of the series are to be issuable in
permanent global form with or without coupons and, if so, (i) whether beneficial
owners of interests in any such permanent global Security may exchange such
interests for Securities of such series and of like tenor of any authorized form
and denomination and the circumstances under which any such exchanges may occur,
if other than in the manner provided in Sections 2.03 and 3.05, and (ii) the
name of the Depositary with respect to any global Security;
(4) the date or dates on which the principal of the Securities of the
series is payable;
(5) the rate or rates at which the Securities of the series shall bear
interest, if any, the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest shall be payable and the Regular
Record Date for the interest payable on any Interest Payment Date and, if
applicable to such series of Securities, the basis points and United States
Treasury rate(s) and any other rates to be used in calculating the reset rate;
(6) the place or places where the principal of (and premium, if any)
and interest on Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company, pursuant to any
sinking fund or otherwise;
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(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous provisions or
at the option of a Holder thereof and the period or periods within which, the
price or prices at which and the terms and conditions upon which Securities of
the series shall be redeemed or purchased, in whole or in part, pursuant to such
obligation, and, where applicable, the obligation of the Company to select the
Securities to be redeemed;
(9) the denominations in which Securities of the series shall be
issuable;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 5.02;
(11) additional Events of Default with respect to Securities of the
series, if any, other than those set forth herein;
(12) if either or both of Section 13.02 and Section 13.03 shall be
inapplicable to the Securities of the series (provided that if no such
inapplicability shall be specified, then both Section 13.02 and Section 13.03
shall be applicable to the Securities of the series);
(13) if other than U.S. dollars, the currency or currencies or units
based on or related to currencies in which the Securities of such series shall
be denominated and in which payments or principal of, and any premium and
interest on, such Securities shall or may by payable;
(14) additional covenants with respect to Securities of the series, if
any, other than those set forth herein;
(15) if other than the Trustee, the identity of the Registrar and any
Paying Agent; and
(16) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such Board Resolution and set forth in such Officer's Certificate or in any
such Indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officer's
Certificate setting forth, or providing the manner for determining, the terms of
the Securities of such series.
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SECTION 3.02. Denominations.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 3.01. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President or one of
its Vice Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile. The seal of the Company
may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Securities. Typographical and other
minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any Security that
has been duly authenticated and delivered by the Trustee.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and make such Securities available for
delivery. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 2.01 and 3.01, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Sections 315(a)
through (d) of the Trust Indenture Act) shall be fully protected in relying
upon, an Opinion of Counsel stating,
(a) that the form of such Securities has been established in
conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 3.01, that such terms have
been established in conformity with the provisions of this Indenture;
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their terms, except
to the extent enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws
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affecting the enforcement of creditors' rights generally and by the effect of
general principles of equity (regardless of whether enforceability is considered
in a proceeding in equity or at law);
(d) that no consent, approval, authorization, order, registration or
qualification of or with any court or any governmental agency or body having
jurisdiction over the Company is required for the execution and delivery of such
Securities by the Company, except such as have been obtained (except that no
opinion need be expressed as to state securities or Blue Sky laws).
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee, or in the written opinion of
counsel to the Trustee (which counsel may be an employee of the Trustee) such
authentication may not lawfully be made or would involve the Trustee in personal
liability.
Notwithstanding the provisions of Section 3.01 and of the immediately
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officer's
Certificate otherwise required pursuant to Section 3.01 or the Company Order and
Opinion of Counsel otherwise required pursuant to the immediately preceding
paragraph at or prior to the time of authentication of each Security of such
series if such documents are delivered at or prior to the authentication upon
original issuance of the first Security of such series to be issued.
If the Company shall establish pursuant to Section 3.01 that the
Securities of a series are to be issued in the form of one or more global
Securities, then the Company shall execute and the Trustee shall, in accordance
with this section and the Company Order with respect to the authentication and
delivery of such series, authenticate and deliver one or more global Securities
that (i) shall be in an aggregate amount equal to the aggregate principal amount
specified in such Company Order, (ii) shall be registered in the name of the
Depositary therefor or its nominee, and (iii) shall be made available for
delivery by the Trustee to the Depositary or pursuant to the Depositary's
instruction.
Each depositary designated pursuant to Section 3.01 must, at the time
of its designation and at all times while it serves as depositary, be a clearing
agency registered under the Exchange Act and any other applicable statute or
regulation.
Unless otherwise provided for in the form of Security, each Security
shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture.
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SECTION 3.04. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
make available for delivery, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities.
In the case of Securities of any series, such temporary Securities may
be in global form, representing all or a portion of the Outstanding Securities
of such series.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions of Section 3.05), if temporary
Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company in a Place of Payment for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of any
series, the Company shall execute and the Trustee shall authenticate and make
available for delivery in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations and of like
tenor. Until so exchanged, the temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities of such series.
If temporary Securities of any series are issued in global form, any
such temporary global Security shall, unless otherwise provided therein, be
delivered to the office of the Depositary therefor for credit to the respective
accounts of the beneficial owners of such Securities (or to such other accounts
as they may direct).
SECTION 3.05. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "SECURITY REGISTER") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of registration of transfers of Securities. The
Trustee is hereby appointed "SECURITY REGISTRAR" for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency of the Company in Place of Payment for that
series, the Company shall execute, and the Trustee shall authenticate and make
available for delivery, in the name of the designated transferee or transferees,
one or more new Securities of the same series, of any authorized denominations
and of a like aggregate principal amount and Stated Maturity.
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At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and Stated Maturity, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any Securities are
so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, the Securities which the Holder
making the exchange is entitled to receive.
If the principal amount and applicable premium, of part but not all of
a Global Security is paid, then upon surrender to the Trustee of such Global
Security, the Company shall execute and the Trustee shall authenticate, deliver
and register a Global Security in an authorized denomination in aggregate
principal amount equal to, and having the same terms and of the same series as,
the unpaid portion of such Global Security.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided in the Securities to be transferred or
exchanged, no service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.04, 9.06 or 11.07 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 11.03 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity
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as may be required by them to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company shall execute
and upon its request the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security, a new Security of the same series and
of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.07. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "DEFAULTED INTEREST") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an
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amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Section 3.07
provided. Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15 days and
not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Securities of such series at his address as it appears in
the Security Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Section 3.07, such manner of payment shall be deemed practicable by
the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.08. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Section 3.07) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee or any agent of the Company or the
Trustee shall have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interest of a
Security in global form, or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interest. Notwithstanding the
foregoing, with respect to any Security in global form, nothing
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herein shall prevent the Company or the Trustee or any agent of the Company or
the Trustee from giving effect to any written certification, proxy or other
authorization furnished by any Depositary (or its nominee), as a Holder, with
respect to such Security in global form or impair, as between such Depositary
and owners of beneficial interests in such Security in global form, the
operation of customary practices governing the exercise of the right of such
Depositary (or its nominee) as holder of such Security in global form.
SECTION 3.09. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by this Indenture. All cancelled Securities shall be held by the Trustee and may
be destroyed (and, if so destroyed, certification of their destruction shall be
delivered to the Company, unless, by a Company Order, the Company shall direct
that cancelled Securities be returned to it).
SECTION 3.10. Computation of Interest.
Except as otherwise specified as contemplated by Section 3.01 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a year of twelve 30-day months.
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ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for or in the form of Security for such series), when the
Trustee, upon Company Request and at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when
(a) either
(1) all Securities theretofore authenticated and delivered (other than
(A) Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.06 and (B) Securities for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 10.07) have been delivered to the Trustee for
cancellation; or
(2) all such Securities not theretofore delivered to the Trustee for
cancellation
(A) have become due and payable, or
(B) will become due and payable at their Stated Maturity within one
year, or
(C) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (A), (B) or (C) above, has deposited with the
Trustee as trust funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore delivered
to the Trustee for cancellation, for principal (and premium, if any) and
interest to the date of such deposit (in the case of Securities which have
become due and payable) or the Stated Maturity or Redemption Date, as the case
may be;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that all conditions precedent provided
for herein relating to the satisfaction and discharge of this Indenture have
been complied with.
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Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07, the obligations of
the Company to any Authenticating Agent under Section 6.14 and, if money shall
have been deposited with the Trustee pursuant to subclause (2) of clause (a) of
this Section 4.01, the obligations of the Trustee under Section 4.02 and the
last paragraph of Section 10.07 shall survive.
If the Company shall have paid or caused to be paid in whole or in
part the principal of and premium, if any, and interest on any Security, as and
when the same shall become due and payable or the Company shall have delivered
to the Trustee for cancellation any outstanding Security, such Security shall
cease to be entitled to the lien, benefit or security interest under this
Indenture to the extent of such amounts paid.
SECTION 4.02. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.07, all
money deposited with the Trustee pursuant to Section 4.01 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with or
received by the Trustee.
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ARTICLE V
REMEDIES
SECTION 5.01. Events of Default.
"EVENT OF DEFAULT," wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or to be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(1) the Company defaults in the payment of interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days; or
(2) the Company defaults in the payment of the principal of (or
premium, if any, on) any Security when the same becomes due and payable at
Maturity, upon redemption (including redemptions under Article XI), or
otherwise; or
(3) the Company fails to observe or perform any of its other
covenants, warranties or agreements in the Securities of that series or
this Indenture (other than a covenant, agreement or warranty a default in
whose performance or whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this Indenture solely
for the benefit of series of Securities other than that series), and the
failure to observe or perform continues for 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 Outstanding Securities of that series;
or
(4) the Company defaults in the payment when due (subject to any
applicable grace period), whether at stated maturity or otherwise, of any
principal of or interest on (however designated) any indebtedness for
borrowed money of, or guaranteed by, the Company in the aggregate principal
amount of at least $50,000,000, whether such indebtedness now exists or
shall hereafter be created; or
(5) the Company pursuant to or within the meaning of any Bankruptcy
Law (A) commences a voluntary case or proceeding under any Bankruptcy Law
with respect to itself, (B) consents to the entry of a judgment, decree or
order for relief against it in an involuntary case or proceeding under any
Bankruptcy Law, (C) consents to or acquiesces in the institution of
bankruptcy or insolvency proceedings against it, (D) applies for, consents
to or acquiesces in the appointment of or taking possession by a Custodian
of the Company or for any material part of its property, (E) makes a
general assignment for the benefit of its creditors or (F) takes any
corporate action in furtherance of or to facilitate, conditionally or
otherwise, any of the foregoing; or
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(6) (i) a court of competent jurisdiction enters a judgment, decree or
order for relief in respect of the Company in an involuntary case or
proceeding under any Bankruptcy Law which shall (A) approve as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition in respect of the Company, (B) appoint a Custodian of the
Company or for any material part of its property or (C) order the
winding-up or liquidation of its affairs, and such judgment, decree or
order shall remain unstayed and in effect for a period of 60 consecutive
days; or (ii) any bankruptcy or insolvency petition or application is
filed, or any bankruptcy or insolvency proceeding is commenced against the
Company and such petition, application or proceeding is not dismissed
within 60 days; or (iii) a warrant of attachment is issued against any
material portion of the property of the Company which is not released
within 60 days of service, or
(7) any other Event of Default provided with respect to Securities of
that series.
A Default under clause (3) above is not an Event of Default until the
Trustee or the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of that series notify the Company of the Default and the
Company does not cure the Default within 60 days after receipt of the notice.
SECTION 5.02. Acceleration of Maturity and Rescission.
If an Event of Default with respect to Securities of any series (other
than an Event of Default specified in clause (5) or (6) of Section 5.01) occurs
and is continuing, the Trustee by notice in writing to the Company, or the
Holders of at least 25% in aggregate principal amount of the Outstanding
Securities of that series by notice in writing to the Company and the Trustee,
may declare the unpaid principal of and accrued interest to the date of
acceleration (or, if the Securities of that series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of that series) on all the Outstanding Securities of that series to be due
and payable immediately and, upon any such declaration, the Outstanding
Securities of that series (or specified principal amount) shall become and be
immediately due and payable.
If an Event of Default specified in clause (5) or (6) of Section 5.01
occurs, all unpaid principal of and accrued interest on the Outstanding
Securities of that series (or specified principal amount) shall ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder of any Security of that series.
Upon payment of all such principal and interest, all of the Company'
obligations under the Securities of that series and (upon payment of the
Securities of all series) this Indenture shall terminate, except obligations
under Section 6.07.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of that series by notice to the Trustee may rescind an
acceleration and its consequences if (i) all existing Events of Default, other
than the nonpayment of the principal
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of and interest on the Securities of that series that has become due solely by
such declaration of acceleration, have been cured or waived, (ii) to the extent
the payment of such interest is lawful, interest on overdue installments of
interest and overdue principal that has become due otherwise than by such
declaration of acceleration have been paid, (iii) the rescission would not
conflict with any judgment or decree of a court of competent jurisdiction and
(iv) all payments due to the Trustee and any predecessor Trustee under Section
6.07 have been made.
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable, (A) if such default occurs
prior to the Release Date, and such default continues for a period of 90
days, or (B) if such default occurs on or after the Release Date, such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at Maturity, upon redemption (including redemption
under Article XII) or otherwise,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the rate
or rates prescribed therefor in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the reasonable costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default hereunder occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders of Securities by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to secure
any other proper remedy.
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SECTION 5.04. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the Securities
and to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agent and counsel) and of the Holders allowed in such judicial
proceedings, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section
6.07.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 5.05. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
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SECTION 5.06. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article in respect
of the Securities of any series shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, upon
presentation of the Securities in respect of which moneys have been collected
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section
6.07 applicable to such series;
Second: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities of such series
in respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Securities of such series for principal (and premium, if
any) and interest, respectively; and
Third: To the Company.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 5.06. At least fifteen (15) days before such
record date, the Trustee shall mail to each Holder and the Company a notice that
states the record date, the payment date and the amount to be paid.
SECTION 5.07. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
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(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of Holders of Securities of
any series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other of such Holders, or to obtain or to seek to obtain priority
or preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all Holders of Securities of the affected series.
SECTION 5.08. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 3.07) interest on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
SECTION 5.09. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding has been instituted.
SECTION 5.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 3.06, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein.
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Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 5.12. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that:
(1) such direction shall not be in conflict with any rule of law or
with this Indenture;
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction; and
(3) subject to Section 6.01, the Trustee need not take any action
which might involve the Trustee in personal liability or be unduly
prejudicial to the Holders not joining therein.
SECTION 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may by written notice to the Trustee on
behalf of the Holders of all the Securities of such series waive any Default or
Event of Default with respect to such series and its consequences, except a
Default or Event of Default
(1) in respect of the payment of the principal of (or premium, if any)
or interest on any Security of such series, or
(2) in respect of a covenant or other provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such Default or Event of Default shall cease to
exist and shall be deemed to have been cured, for every purpose of this
Indenture and the Securities of such series; but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereon.
SECTION 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such
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court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest on any Security on or after the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date).
SECTION 5.15. Waiver of Stay or Extension.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim, and will actively resist any and all efforts to be compelled to take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and (to the extent that it may lawfully do so) the Company
hereby expressly waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
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ARTICLE VI
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities of the Trustee.
(a) Except during the continuance of an Event of Default, the
Trustee's duties and responsibilities under this Indenture shall be governed by
Section 315 (a) of the Trust Indenture Act.
(b) In case an Event of Default has occurred and is continuing, and is
known to the Trustee, the Trustee shall exercise the rights and powers vested in
it by this Indenture, and shall use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(c) None of the provisions of Section 315 (d) of the Trust Indenture
Act shall be excluded from this Indenture.
SECTION 6.02. Notice of Defaults.
Within 30 days after the occurrence of any Default or Event of Default
with respect to the Securities of any series, the Trustee shall give to all
Holders of Securities of such series, as their names and addresses appear in the
Security Register, notice of such Default or Event of Default known to the
Trustee, unless such Default or Event of Default shall have been cured or
waived; provided, however, that, except in the case of a Default or Event of
Default in the payment of the principal of (or premium, if any) or interest on
any Security of such series or in the payment of any sinking fund installment
with respect to Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
interest of the Holders of Securities of such series.
SECTION 6.03. Certain Rights of Trustee.
Subject to the provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
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(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity to its reasonable satisfaction
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) prior to the occurrence of an Event of Default with respect to the
Securities of any series and after the curing or waiving of all such Events of
Default which may have occurred, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, approval or other paper or document, or the books and records of the
Company, unless requested in writing to do so by the Holders of a majority in
principal amount of the outstanding Securities of any series; provided, however,
that if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is not, in the opinion of the Trustee, reasonably assured to the
Trustee by the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such costs, expenses or
liabilities as a condition to so proceeding; the reasonable expense of every
such investigation shall be paid by the Company or, if paid by the Trustee,
shall be repaid by the Company upon demand;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities.
The recitals herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee or any Authenticating Agent assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
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SECTION 6.05. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
6.08 and 6.13, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 6.06. Money Held in Trust.
Money held by the Trustee in trust hereunder (including amounts held
by the Trustee as Paying Agent) need not be segregated from other funds except
to the extent required by law. The Trustee may allow and credit the Company
interest on any money received by it hereunder at such rate, if any, as may be
agreed upon by the Company and the Trustee from time to time as may be permitted
by law.
SECTION 6.07. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability, damage, claim or expense, including taxes (other than
taxes based upon or determined or measured by the income of the Trustee),
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.01(5) or Section 5.01(6), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law.
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The provisions of this Section 6.07 shall survive this Indenture.
SECTION 6.08. Disqualification; Conflicting Interests.
The Trustee shall be disqualified only where such disqualification is
required by Section 310(b) of the Trust Indenture Act. Nothing shall prevent the
Trustee from filing with the Commission the application referred to in the
second to last paragraph of Section 310(b) of the Trust Indenture Act.
SECTION 6.09. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under Section 310(a) (1) of the Trust Indenture Act
having a combined capital and surplus of at least $50,000,000 subject to
supervision or examination by federal or State authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. Neither the Company nor any Person directly or
indirectly controlling, controlled by, or under common control with the Company
may serve as Trustee. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
SECTION 6.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 6.11 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of the Trust
Indenture Act after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least six
months; or
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(2) the Trustee shall cease to be eligible under Section 6.09 and
shall fail to resign after written request therefor by the Company or by
any such Holder of a Security who has been a bona fide Holder of a Security
for at least six months; or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 315(e) of the
Trust Indenture Act, any Holder who has been a bona fide Holder of a Security
for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee with respect to all Securities and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
6.11, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company with
respect to such Securities. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company or the
Holders and accepted appointment in the manner required by Section 6.11, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to all
Holders of Securities of such series as their names and addresses appear in the
Security Register. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its Corporate
Trust Office.
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SECTION 6.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture, the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
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(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under the Trust Indenture Act.
SECTION 6.12. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 6.13. Preferential Collection of Claims Against Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent indicated therein.
SECTION 6.14. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding the Trustee
may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of, and subject to the
direction of, the Trustee to authenticate Securities of such series issued upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 3.06, and Securities so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall
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be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
Form of Authenticating Agent's
Certificate of Authentication
Dated: ____________
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This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
FIRSTAR BANK, NATIONAL ASSOCIATION
As Trustee
By
________________________________
As Authenticating Agent
By
________________________________
Authorized Signatory
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ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than January 1 and July 1 in each year, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders as of the preceding December 15 or June 15, as the case
may be; and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
provided, however, that so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
SECTION 7.02. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.01 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.02 upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as "applicants")
apply in writing to the Trustee, and furnish to the Trustee reasonable proof
that each such applicant has owned a Security for a period of at least six
months preceding the date of such application, and such application states that
the applicants desire to communicate with other Holders with respect to their
rights under this Indenture or under the Securities and is accompanied by a copy
of the form of proxy or other communication which such applicants propose to
transmit, then the Trustee shall, within five Business Days after the receipt of
such application, at its election, either
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 7.02(a); or
(ii) inform such applicants as to the approximate number of Holders
whose names and addresses appear in the information preserved at the time
by the Trustee in accordance with Section 7.02 (a), and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
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If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder whose name and address appears in the
information preserved at the time by the Trustee in accordance with Section 7.02
(a) a copy of the form of proxy or other communication which is specified in
such request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender the
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interest of the Holders or would be in violation of applicable law. Such written
statement shall specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the written statement
so filed, shall enter an order refusing to sustain any of such objections or if,
after the entry of an order sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for hearing, that all
objections so sustained have been met and shall enter an order so declaring, the
Trustee shall mail copies of such material to all such Holders with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the company nor the Trustee
nor any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with Section 7.02(b), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 7.02(b).
SECTION 7.03. Reports by Trustee.
(a) Within 60 days after May 15 of each year, the Trustee shall
transmit by mail to all Holders of Securities as provided in Section 313(c) of
the Trust Indenture Act, a brief report dated as of May 15, if required by and
in compliance with Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall from time to time transmit by mail to all
Holders of Securities as provided in Section 313(c) of the Trust Indenture Act
brief reports that comply, both as to content and date of delivery, with Section
313(b) of the Trust Indenture Act (to the extent required by such Section).
(c) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
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SECTION 7.04. Reports by Company.
The Company shall:
(1) file with the Trustee, within 30 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the Exchange
Act; or, if the Company is not required to file information, documents or
reports pursuant to either of said Sections, then it shall file with the
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary
and periodic information, documents and reports which may be required
pursuant to Section 13 of the Exchange Act in respect of a security listed
and registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations;
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (1) and (2) of
this Section as may be required by rules and regulations prescribed from
time to time by the Commission; and
(4) furnish to the Trustee, on or before May 1 of each year, a brief
certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of the
Company's compliance with all conditions and covenants under this
Indenture. For purposes of this paragraph, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture. Such certificate need not comply with
Section 1.02.
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ARTICLE VIII
CONSOLIDATION, MERGER, LEASE, SALE OR TRANSFER
SECTION 8.01. Then Company May Merge, Etc.
The Company shall not consolidate with, or merge with or into any
other corporation (whether or not the Company shall be the surviving
corporation), or sell, assign, transfer or lease all or substantially all of its
properties and assets as an entirety or substantially as an entirety to any
Person or group of affiliated Persons, in one transaction or a series of related
transactions, unless:
(1) either the Company shall be the continuing Person or the Person
(if other than the Company) formed by such consolidation or with which or
into which the Company is merged or the Person (or group of affiliated
Persons) to which all or substantially all the properties and assets of the
Company as an entirety or substantially as an entirety are sold, assigned,
transferred or leased shall be a corporation (or constitute corporations)
and shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, all the
obligations of the Company under the Securities and this Indenture; and
(2) immediately before and after giving effect to such transaction or
series of related transactions, no Event of Default, and no Default, shall
have occurred and be continuing.
SECTION 8.02. Opinion of Counsel.
The Company shall deliver to the Trustee prior to the proposed
transaction(s) covered by Section 8.01 an Officer's Certificate and an Opinion
of Counsel stating that the transaction(s) and such supplemental indenture
comply with this Indenture and that all conditions precedent to the consummation
of the transaction(s) under this Indenture have been met.
SECTION 8.03. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the Company
into any other corporation or any lease, sale, assignment, or transfer of all or
substantially all of the property and assets of the Company in accordance with
Section 8.01, the successor corporation formed by such consolidation or into
which the Company is merged or the successor corporation or affiliated group of
corporations to which such lease, sale, assignment, or transfer is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
corporation or corporations had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor corporation or
corporations shall be relieved of all obligations and covenants under this
Indenture and the Securities and in the event of such conveyance or transfer,
except in the case of a lease, any such predecessor corporation may be dissolved
and liquidated.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders.
Without notice to or the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default with respect to all or any
series of Securities; or
(4) to add or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 3.01; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 6.11(b); or
(8) to cure any ambiguity, defect or inconsistency or to correct or
supplement any provision herein which may be inconsistent with any other
provision herein; or
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(9) to make any change that does not materially adversely affect the
interests of the Holders of Securities of any series.
Upon request of the Company, accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon receipt
by the Trustee of the documents described in (and subject to the last sentence
of) Section 9.03, the Trustee shall join with the Company in the execution of
any supplemental indenture authorized or permitted by the terms of this
Indenture.
SECTION 9.02. Supplemental Indentures with Consent of Holders.
With the written consent of the Holders of a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee
shall, subject to Section 10.03, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable upon
the redemption thereof or extend the time for payment thereof, or reduce
the amount of the principal of an Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.02, or change any Place of Payment where, or
the coin or currency in which, any Security or any premium or the interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date); or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver of compliance with certain provisions of this Indenture or
Defaults or Events of Default hereunder and their consequences provided for
in this Indenture; or
(3) change the redemption provisions (including Article Eleven) hereof
in a manner adverse to such Holder; or
(4) modify any of the provisions of this Section or Section 5.13,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby;
provided, however, that this clause shall not be deemed to require the
consent of any Holder with respect to changes in the references
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to "the Trustee" and concomitant changes in this Section, or the deletion
of this proviso, in accordance with the requirements of Sections 6.11(b)
and 9.01(7).
A supplemental indenture which changes or eliminates any covenant or other
provisions of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures.
The Trustee shall sign any supplemental indenture authorized pursuant
to this Article, subject to the last sentence of this Section 9.03. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 6.01) shall be fully protected in relying upon, an Officer's
Certificate and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 9.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.06. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
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ARTICLE X
COVENANTS
SECTION 10.01. Payments of Principal and Interest.
With respect to each series of Securities, the Company will duly and
punctually pay the principal of (and premium, if any) and interest on such
Securities in accordance with their terms and this Indenture, and will duly
comply with all the other terms, agreements and conditions contained in, or made
in the Indenture for the benefit of, the Securities of such series.
SECTION 10.02. Maintenance of Office or Agency.
The Company will maintain an office or agency in each Place of Payment
where Securities may be surrendered for registration of transfer or exchange or
for presentation for payment, where notices and demands to or upon the Company
in respect of the Securities and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and any change in
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the address of the Trustee as set forth in Section
1.05.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
Unless otherwise set forth in, or pursuant to, a Board Resolution or
Indenture supplemental hereto with respect to a series of Securities, the
Company hereby initially designates the Corporate Trust Office of Firstar Bank,
National Association, in Cincinnati, Ohio as such office of the Company.
SECTION 10.03. Corporate Existence.
Subject to Article VIII, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the rights (charter and statutory) and franchises of the Company;
provided, however, that the Company shall not be required to preserve any such
right or franchise if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company.
SECTION 10.04. Payment of Taxes and Other Claims.
The Company will pay or discharge, or cause to be paid or discharged,
before the same shall become delinquent, (l) all material taxes, assessments and
governmental charges
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levied or imposed upon the Company or upon the income, profits or property of
the Company, and (2) all lawful claims for labor, materials and supplies which,
if unpaid, might by law become a material lien upon the property of the Company;
provided, however, that the Company shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings and for which adequate provision has been made.
SECTION 10.05. Maintenance of Properties.
The Company will cause all material properties used or useful in the
conduct of its business to be maintained and kept in good condition, repair and
working order (normal wear and tear excepted) and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties, or
disposing of any of them, if such discontinuance or disposal is, in the judgment
of the Board of Directors, desirable in the conduct of the business of the
Company.
SECTION 10.06. Certificates Respecting Defaults.
The Company shall deliver to the Trustee forthwith upon becoming aware
of a Default or Event of Default (but in no event later than 10 days after the
occurrence of each Default or Event of Default that is continuing), an Officer's
Certificate setting forth the details of such Default or Event of Default and
the action that the Company proposes to take with respect thereto and the
specific section or sections of this Indenture in connection with which such
Default or Event of Default has occurred.
SECTION 10.07. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of (and
premium, if any) or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure to so act.
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The Company will cause each Paying Agent for any series of Securities
(other than the Trustee) to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Securities of that series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal And premium, if any) or interest on the Securities of
that series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Security of any series and remaining unclaimed for two
years after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in New York, New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance or such money then remaining
will be repaid to the Company.
SECTION 10.08. Restrictions on Sales of Voting Common Stock of
Wisconsin Public Service Corporation.
After the date hereof and so long as any Securities are Outstanding,
the Company shall own, directly or indirectly, all of the shares of voting
common stock of
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Wisconsin Public Service Corporation now or hereafter issued and outstanding,
unless such shares are transferred or sold in a transaction which complies with
Section 8.01.
SECTION 10.09. Restrictions on Liens.
After the date hereof and so long as any Securities are Outstanding,
the Company will not pledge, mortgage, hypothecate or grant a security interest
in, or permit any mortgage, pledge, security interest or other lien upon, any
capital stock of any Subsidiary now or hereafter directly or indirectly owned by
the Company to secure any Indebtedness (hereinafter defined), without making
effective provisions whereby the Outstanding Securities shall be (so long as
such other Indebtedness shall be so secured) equally and ratably secured with
any and all such other Indebtedness and any other indebtedness similarly
entitled to be equally and ratably secured; provided, however, that this
restriction shall not apply to nor prevent the creation or existence of (i) any
mortgage, pledge, security interest, lien or encumbrance upon any such capital
stock (A) created at the time of the acquisition of such capital stock by the
Company or within one year after such time to secure all or a portion of the
purchase price for such capital stock or (B) existing thereon at the time of the
acquisition thereof by the Company (whether or not the obligations secured
thereby are assumed by the Company), or (ii) any extension, renewal or refunding
of any mortgage, pledge, security interest, lien or encumbrance described in
clause (i) above on capital stock of any Subsidiary theretofore subject thereto
(or substantially the same capital stock) or any portion thereof.
For purposes of this Section 10.09, "INDEBTEDNESS" means all
indebtedness, whether or not represented by bonds, debentures, notes or other
securities, created or assumed by the Company or any Subsidiary for the
repayment of money borrowed. All indebtedness for money borrowed secured by a
lien upon property owned by the Company or any Subsidiary and upon which
indebtedness for money borrowed the Company or such Subsidiary customarily pays
interest, although the Company or such Subsidiary has not assumed or become
liable for the payment of such indebtedness for money borrowed, shall for
purposes of this Section 10.09 be deemed to be indebtedness of the Company or
such Subsidiary. All indebtedness for money borrowed of others guaranteed as to
payment of principal by the Company or any Subsidiary or in effect guaranteed by
the Company or such Subsidiary through a contingent agreement to purchase such
indebtedness for money borrowed shall be deemed for purposes of this Section
10.09 to be Indebtedness of the Company or such Subsidiary, but no other
contingent obligation of the Company or any Subsidiary in respect of
indebtedness for money borrowed or other obligations incurred by others shall
for purposes of this Section 10.09 be deemed to be Indebtedness of the Company
or such Subsidiary.
In case the Company or any Subsidiary shall propose to pledge,
mortgage, hypothecate or grant a security interest in any capital stock of any
Subsidiary owned by the Company or such Subsidiary to secure any Indebtedness,
other than as permitted by clauses (i) and (ii) in the second preceding
paragraph, the Company will prior thereto give written notice thereof to the
Trustee, and the Company will prior to or simultaneously with such pledge,
mortgage, hypothecation or grant of security interest, by supplemental indenture
executed to the Trustee (or to the extent legally necessary to another trustee
or an additional or separate trustee), in form satisfactory to the Trustee,
effectively secure (for so long as other
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Indebtedness shall be so secured) all the Securities equally and ratably with
such Indebtedness and with any other indebtedness for money borrowed similarly
entitled to be equally and ratably secured.
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ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.01. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.01 for Securities of any
series) in accordance with this Article.
SECTION 11.02. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall, at
least 45 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series to be
redeemed. In the case of any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officer's Certificate evidencing compliance with such restriction.
SECTION 11.03. Election by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 90 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, substantially pro rata, by lot
or by any other method as the Trustee considers fair and appropriate and that
complies with the requirements of the principal national securities exchange, if
any, on which such Securities are listed, and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series; provided that
in case the Securities of such series have different terms and maturities, the
Securities to be redeemed shall be selected by the Company and the Company shall
give notice thereof to the Trustee.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of the Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in part,
to the portion of the principal amount of such Securities which has been or is
to be redeemed.
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SECTION 11.04. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 45 days prior to the Redemption
Date, unless otherwise provided in an indenture supplemental hereto, to each
Holder of Securities to be redeemed, at his address appearing in the Security
Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed;
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date;
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price;
(6) that the redemption is for a sinking fund, if such is the case;
(7) the CUSIP number, if any, of the Securities to be redeemed; and
(8) unless otherwise provided as to a particular series of Securities,
if at the time of publication or mailing of any notice of redemption the
Company shall not have deposited with the Trustee or Paying Agent and/or
irrevocably directed the Trustee or Paying Agent to apply, from money held
by it available to be used for the redemption of Securities, an amount in
cash sufficient to redeem all of the Securities called for redemption,
including accrued interest to the Redemption Date, such notice shall state
that it is subject to the receipt of the redemption moneys by the Trustee
or Paying Agent before the Redemption Date (unless such redemption is
mandatory) and such notice shall be of no effect unless such moneys are so
received before such date.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 11.05. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.07) an amount of
money sufficient to pay the Redemption
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Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that date.
SECTION 11.06. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Regular or Special Record Dates
according to their terms and the provisions of Section 3.07.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 11.07. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at an office or agency of the Company at a Place of Payment therefor (with, if
the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing), and
the Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series and Stated Maturity, of any authorized denomination as requested
by such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
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ARTICLE XII
SINKING FUNDS
SECTION 12.01. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series, except as otherwise specified as
contemplated by Section 3.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "MANDATORY SINKING
FUND PAYMENT," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "OPTIONAL
SINKING FUND PAYMENT." If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 12.02. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 12.02. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Securities of a series (other than any
Securities previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 12.03. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officer's
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 12.02 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 11.03 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 11.04. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 11.06 and 11.07.
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ARTICLE XIII
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 13.01. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance.
Unless pursuant to Section 3.01 provision is made for the
inapplicability of either or both of (a) Defeasance of the Securities of a
series under Section 13.02 or (b) Covenant Defeasance of the Securities of a
series under Section 13.03, then the provisions of such Section or Sections, as
the case may be, together with the other provisions of this Article, shall be
applicable to the Securities of such series, and the Company may at its option
by Board Resolution, at any time, with respect to the Securities of such series,
elect to have either Section 13.02 (unless inapplicable) or Section 13.03
(unless inapplicable) be applied to the Outstanding Securities of such series
upon compliance with the applicable conditions set forth below in this Article.
SECTION 13.02. Defeasance and Discharge.
Upon the Company's exercise of the option provided in Section 13.01 to
defease the Outstanding Securities of a particular series, the Company shall be
discharged from its obligations with respect to the Outstanding Securities of
such series on the date the applicable conditions set forth in Section 13.04 are
satisfied (hereinafter, "DEFEASANCE"). Defeasance shall mean that the Company
shall be deemed to have paid and discharged the entire indebtedness represented
by the Outstanding Securities of such series and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same); provided, however, that the
following rights, obligations, powers, trusts, duties and immunities shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of Outstanding Securities of such series to receive, solely from the
trust fund provided for in Section 13.04, payments in respect of the principal
of (and premium, if any) and interest on such Securities when such payments are
due, (B) the Company's obligations with respect to such Securities under
Sections 3.04, 3.05, 3.06, 10.02 and 10.07, (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (D) this Article. Subject to
compliance with this Article, the Company may exercise its option with respect
to Defeasance under this Section 13.02 notwithstanding the prior exercise of its
option with respect to Covenant Defeasance under Section 14.03 in regard to the
Securities of such series.
SECTION 13.03. Covenant Defeasance.
Upon the Company's exercise of the option provided in Section 13.01 to
obtain a Covenant Defeasance with respect to the Outstanding Securities of a
particular series, the Company shall be released from its obligations under this
Indenture (except its obligations under Sections 3.04, 3.05, 3.06, 5.06, 5.09,
6.10, 10.01, 10.02, and 10.07) with respect to the Outstanding Securities of
such series on and after the date the applicable conditions set
- 61 -
<PAGE>
forth in Section 13.04 are satisfied (hereinafter, "COVENANT DEFEASANCE").
Covenant Defeasance shall mean that, with respect to the Outstanding Securities
of such series, the Company may omit to comply with and shall have no liability
in respect of any term, condition or limitation set forth in this Indenture
(except its obligations under Sections 3.04, 3.05, 3.06, 5.06, 5.09, 6.10,
10.01, 10.02, and 10.07), whether directly or indirectly by reason of any
reference elsewhere herein or by reason of any reference to any other provision
herein or in any other document, and such omission to comply shall not
constitute an Event of Default under Section 5.01(3) with respect to Outstanding
Securities of such series, and the remainder of this Indenture and of the
Securities of such series shall be unaffected thereby.
SECTION 13.04. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to Defeasance under Section
13.02 and Covenant Defeasance under Section 13.03 with respect to the
Outstanding Securities of a particular series:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 6.09 who shall agree to comply with the provisions of this
Article applicable to it), under the terms of an irrevocable trust
agreement in form and substance reasonably satisfactory to such Trustee, as
trust funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefit
of the Holders of such Securities, (A) Dollars in an amount, or (B) U.S.
Government Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide,
not later than the due date of any payment, money in an amount, or (C) a
combination thereof, in each case sufficient, after payment of all federal,
state and local taxes or other charges or assessments in respect thereof
payable by the Trustee, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied
by the Trustee (or other qualifying trustee) to pay and discharge, (i) the
principal of (and premium, if any, on) and each installment of principal of
(and premium, if any) and interest on the Outstanding Securities of such
series on the Stated Maturity of such principal or installment of principal
or interest and (ii) any mandatory sinking fund payments or analogous
payments applicable to the Outstanding Securities of such series on the day
on which such payments are due and payable in accordance with the terms of
this Indenture and of such Securities.
(2) No Default or Event of Default with respect to the Securities of
such series shall have occurred and be continuing on the date of such
deposit or shall occur as a result of such deposit, and no Default or Event
of Default under clause (5) or (6) of Section 5.01 shall occur and be
continuing, at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
- 62 -
<PAGE>
(3) Such deposit, Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which it is
bound.
(4) Such Defeasance or Covenant Defeasance shall not cause any
Securities of such series then listed on any national securities exchange
registered under the Exchange Act to be delisted.
(5) In the case of an election with respect to Section 13.02, the
Company shall have delivered to the Trustee either (A) a ruling directed to
the Trustee received from the Internal Revenue Service to the effect that
the Holders of the Outstanding Securities of such series will not recognize
income, gain or loss for federal income tax purposes as a result of such
Defeasance and will be subject to federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such Defeasance had not occurred or (B) an Opinion of Counsel, based on
such ruling or on a change in the applicable federal income tax law since
the date of this Indenture, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of the Outstanding
Securities of such series will not recognize income, gain or loss for
federal income tax purposes as a result of such Defeasance and will be
subject to federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Defeasance had not
occurred.
(6) In the case of an election with respect to Section 13.03, the
Company shall have delivered to the Trustee an Opinion of Counsel or a
ruling directed to the Trustee received from the Internal Revenue Service
to the effect that the Holders of the Outstanding Securities of such series
will not recognize income, gain or loss for federal income tax purposes as
a result of such Covenant Defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the same times as would
have been the case if such Covenant Defeasance had not occurred.
(7) Such Defeasance or Covenant Defeasance shall be effected in
compliance with any additional terms, conditions or limitations which may
be imposed on the Company in connection therewith pursuant to Section 3.01.
(8) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the Defeasance under Section
13.02 or the Covenant Defeasance under Section 13.03 (as the case may be)
have been complied with.
SECTION 13.05. Deposited Money and Government Obligations To Be Held
In Trust.
Subject to the provisions of the last paragraph of Section 10.07, all
money and Government Obligations (including the proceeds thereof) deposited with
the Trustee (or other qualifying trustee--collectively for purposes of this
Section 13.05, the "Trustee") pursuant to Section 13.04 in respect of the
Outstanding Securities of a particular series shall be held in trust and applied
by the Trustee, in accordance with the provisions of such Securities and this
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<PAGE>
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities of all sums due and to become due
thereon in respect of principal (and premium, if any) and interest, but such
money need not be segregated from other funds except to the extent required by
law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 13.04 or the principal and interest received in
respect thereof, other than any such tax, fee or other charge which by law is
for the account of the Holders of the Outstanding Securities of such series.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver to pay to the Company from time to time upon company Request any
money or Government Obligations held by it as provided in Section 13.04 which,
in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited for
the purpose for which such money or Government Obligations were deposited.
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<PAGE>
ARTICLE XIV
MISCELLANEOUS
SECTION 14.01. Miscellaneous.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
WPS RESOURCES CORPORATION
By:___________________________________
Name:
Title:
Attest:
___________________________________
Name:
Title:
FIRSTAR BANK, NATIONAL ASSOCIATION
as Trustee
By:___________________________________
Name:
Title:
Attest:
___________________________________
Name:
Title:
- 65 -
EXHIBIT 4(c)
- --------------------------------------------------------------------------------
WPS RESOURCES CORPORATION
AS ISSUER
TO
----------------------------------
AS TRUSTEE
----------------------
INDENTURE
SUBORDINATED DEBT SECURITIES
DATED AS OF ______________
----------------------
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
PAGE
RECITALS OF THE COMPANY......................................................1
ARTICLE IDEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.............2
SECTION 1.01. Definitions.............................................2
(a) "ACT,"........................................................2
(b) "AFFILIATE"...................................................2
(c) "AUTHENTICATING AGENT"........................................2
(d) "BANKRUPTCY LAW"..............................................2
(e) "BOARD OF DIRECTORS"..........................................3
(f) "BOARD RESOLUTION"............................................3
(g) "BUSINESS DAY,"...............................................3
(h) "COMMISSION"..................................................3
(i) "COMPANY".....................................................3
(j) "COMPANY REQUEST"or "COMPANY ORDER"...........................3
(k) "CORPORATE TRUST OFFICE"......................................3
(l) "COVENANT DEFEASANCE".........................................4
(m) "CUSTODIAN"...................................................4
(n) "DEBT"........................................................4
(o) "DEFAULT".....................................................4
(p) "DEFAULTED INTEREST"..........................................4
(q) "DEFEASANCE"..................................................4
(r) "DEPOSITARY"..................................................4
(s) "DOLLARS"and "$"..............................................4
(t) "EVENT OF DEFAULT"............................................4
(u) "EXCHANGE ACT"................................................4
(v) "GAAP"........................................................5
(w) "GLOBAL SECURITY".............................................5
(x) "HOLDER"or "SECURITY HOLDER"..................................5
(y) "INDENTURE"...................................................5
(z) "INTEREST,"...................................................5
(aa) "INTEREST PAYMENT DATE,"......................................5
(bb) "MATURITY,"...................................................5
(cc) "OFFICER".....................................................5
(dd) "OFFICER'S CERTIFICATE".......................................6
(ee) "OPINION OF COUNSEL"..........................................6
(ff) "ORIGINAL ISSUE DISCOUNT SECURITY"............................6
(gg) "OUTSTANDING,"................................................6
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(hh) "PAYING AGENT"................................................7
(ii) "PERSON"......................................................7
(jj) "PLACE OF PAYMENT,"...........................................7
(kk) "PREDECESSOR SECURITIES,".....................................7
(ll) "REDEMPTION DATE,"............................................7
(mm) "REDEMPTION PRICE,"...........................................7
(nn) "REGULAR RECORD DATE".........................................7
(oo) "RESPONSIBLE OFFICER,"........................................8
(pp) "SECURITIES"..................................................8
(qq) "SECURITY REGISTER"and "SECURITY REGISTRAR"...................8
(rr) "SENIOR INDEBTEDNESS".........................................8
(ss) "SPECIAL RECORD DATE".........................................8
(tt) "STATED MATURITY,"............................................8
(uu) "SUBSIDIARY"..................................................9
(vv) "TRUST INDENTURE ACT".........................................9
(ww) "TRUSTEE".....................................................9
(xx) "U.S. GOVERNMENT OBLIGATIONS".................................9
(yy) "VICE PRESIDENT,"............................................10
SECTION 1.02. Compliance Certificates and Opinions...................10
SECTION 1.03. Form of Documents Delivered to Trustee.................10
SECTION 1.04. Acts of Holders........................................11
SECTION 1.05. Notices, Etc., to Trustee and Company..................12
SECTION 1.06. Notice to Holders; Waiver..............................12
SECTION 1.07. Conflict with Trust Indenture Act......................13
SECTION 1.08. Effect of Headings and Table of Contents...............13
SECTION 1.09. Successors and Assigns.................................13
SECTION 1.10. Separability Clause....................................13
SECTION 1.11. Benefits of Indenture..................................13
SECTION 1.12. Governing Law..........................................13
SECTION 1.13. Legal Holidays.........................................13
SECTION 1.14. No Recourse Against Others.............................14
ARTICLE II SECURITY FORMS ..................................................15
SECTION 2.01. Forms Generally........................................15
SECTION 2.02. Form of Trustee's Certificate of
Authentication.......................................15
SECTION 2.03. Securities Issuable in the Form of a
Global Security......................................15
SECTION 2.04. CUSIP Number...........................................17
SECTION 2.05. Payment of Securities..................................18
ARTICLE III THE SECURITIES .................................................19
SECTION 3.01. Amount Unlimited; Issuable in Series...................19
SECTION 3.02. Denominations..........................................21
SECTION 3.03. Execution, Authentication, Delivery and
Dating...............................................21
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<PAGE>
SECTION 3.04. Temporary Securities...................................23
SECTION 3.05. Registration, Registration of Transfer and
Exchange.............................................23
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen
Securities...........................................24
SECTION 3.07. Payment of Interest; Interest Rights
Preserved............................................25
SECTION 3.08. Persons Deemed Owners..................................26
SECTION 3.09. Cancellation...........................................27
SECTION 3.10. Computation of Interest................................27
ARTICLE IV SATISFACTION AND DISCHARGE.......................................28
SECTION 4.01. Satisfaction and Discharge of Indenture................28
SECTION 4.02. Application of Trust Money.............................29
ARTICLE V REMEDIES .........................................................30
SECTION 5.01. Events of Default......................................30
SECTION 5.02. Acceleration of Maturity and Rescission................31
SECTION 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee...............................32
SECTION 5.04. Trustee May File Proofs of Claim.......................32
SECTION 5.05. Trustee May Enforce Claims Without
Possession of Securities.............................33
SECTION 5.06. Application of Money Collected.........................33
SECTION 5.07. Limitation on Suits....................................34
SECTION 5.08. Unconditional Right of Holders to Receive
Principal, Premium and Interest......................35
SECTION 5.09. Restoration of Rights and Remedies.....................35
SECTION 5.10. Rights and Remedies Cumulative.........................35
SECTION 5.11. Delay or Omission Not Waiver...........................35
SECTION 5.12. Control by Holders.....................................35
SECTION 5.13. Waiver of Past Defaults................................36
SECTION 5.14. Undertaking for Costs..................................36
SECTION 5.15. Waiver of Stay or Extension............................37
ARTICLE VI THE TRUSTEE .....................................................38
SECTION 6.01. Certain Duties and Responsibilities of the
Trustee..............................................38
SECTION 6.02. Notice of Defaults.....................................38
SECTION 6.03. Certain Rights of Trustee..............................38
SECTION 6.04. Not Responsible for Recitals or Issuance
of Securities........................................39
SECTION 6.05. May Hold Securities....................................40
SECTION 6.06. Money Held in Trust....................................40
SECTION 6.07. Compensation and Reimbursement.........................40
SECTION 6.08. Disqualification; Conflicting Interests................41
SECTION 6.09. Corporate Trustee Required; Eligibility................41
SECTION 6.10. Resignation and Removal; Appointment of
Successor............................................41
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SECTION 6.11. Acceptance of Appointment by Successor.................43
SECTION 6.12. Merger, Conversion, Consolidation or
Succession to Business...............................44
SECTION 6.13. Preferential Collection of Claims Against
Company..............................................44
SECTION 6.14. Appointment of Authenticating Agent....................44
ARTICLE VII HOLDERS'LISTS AND REPORTS BY TRUSTEE AND COMPANY................47
SECTION 7.01. Company to Furnish Trustee Names and
Addresses of Holders.................................47
SECTION 7.02. Preservation of Information; Communications
to Holders...........................................47
SECTION 7.03. Reports by Trustee.....................................48
SECTION 7.04. Reports by Company.....................................49
ARTICLE VIII CONSOLIDATION, MERGER, LEASE, SALE OR TRANSFER.................50
SECTION 8.01. Then Company May Merge, Etc............................50
SECTION 8.02. Opinion of Counsel.....................................50
SECTION 8.03. Successor Corporation Substituted......................50
ARTICLE IX SUPPLEMENTAL INDENTURES..........................................51
SECTION 9.01. Supplemental Indentures Without Consent
of Holders...........................................51
SECTION 9.02. Supplemental Indentures with Consent of
Holders..............................................52
SECTION 9.03. Execution of Supplemental Indentures...................53
SECTION 9.04. Effect of Supplemental Indentures......................53
SECTION 9.05. Conformity with Trust Indenture Act....................53
SECTION 9.06. Reference in Securities to Supplemental
Indentures...........................................53
ARTICLE X COVENANTS ........................................................54
SECTION 10.01. Payments of Principal and Interest.....................54
SECTION 10.02. Maintenance of Office or Agency........................54
SECTION 10.03. Corporate Existence....................................54
SECTION 10.04. Payment of Taxes and Other Claims......................54
SECTION 10.05. Maintenance of Properties..............................55
SECTION 10.06. Certificates Respecting Defaults.......................55
SECTION 10.07. Money for Securities Payments to Be Held
in Trust.............................................55
ARTICLE XI REDEMPTION OF SECURITIES.........................................57
SECTION 11.01. Applicability of Article...............................57
SECTION 11.02. Election to Redeem; Notice to Trustee..................57
SECTION 11.03. Election by Trustee of Securities to Be
Redeemed.............................................57
SECTION 11.04. Notice of Redemption...................................58
SECTION 11.05. Deposit of Redemption Price............................58
SECTION 11.06. Securities Payable on Redemption Date..................59
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<PAGE>
SECTION 11.07. Securities Redeemed in Part............................59
ARTICLE XII SINKING FUNDS ..................................................60
SECTION 12.01. Applicability of Article...............................60
SECTION 12.02. Satisfaction of Sinking Fund Payments with
Securities...........................................60
SECTION 12.03. Redemption of Securities for Sinking Fund..............60
ARTICLE XIII DEFEASANCE AND COVENANT DEFEASANCE.............................61
SECTION 13.01. Applicability of Article; Company's Option
to Effect Defeasance or Covenant
Defeasance...........................................61
SECTION 13.02. Defeasance and Discharge...............................61
SECTION 13.03. Covenant Defeasance....................................61
SECTION 13.04. Conditions to Defeasance or Covenant
Defeasance..........................................62
SECTION 13.05. Deposited Money and Government Obligations
To Be Held In Trust.................................63
ARTICLE XIV SUBORDINATION OF DEBT SECURITIES................................65
SECTION 14.01. Agreement to Subordinate...............................65
SECTION 14.02. Default on Senior Indebtedness.........................65
SECTION 14.03. Liquidation; Dissolution; Bankruptcy...................66
SECTION 14.04. Subrogation............................................67
SECTION 14.05. Trustee to Effectuate Subordination....................68
SECTION 14.06. Notice by the Company..................................68
SECTION 14.07. Rights of the Trustee; Holders of Senior
Indebtedness.........................................69
SECTION 14.08. Subordination May Not Be Impaired......................69
ARTICLE XV MISCELLANEOUS ...................................................70
SECTION 15.01. Miscellaneous..........................................70
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WPS RESOURCES CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of ___________
Trust Indenture
Act Section Indenture Section
Section 310 (a) (1).......................................... 6.09
(a) (2).......................................... 6.09
(a) (3).......................................... Not Applicable
(a) (4).......................................... Not Applicable
(a) (5) ......................................... 6.09
(b).............................................. 6.08, 6.10
Section 311 (a).............................................. 6.13
(b).............................................. 6.13
Section 312 (a).............................................. 7.01(a), 7.02(a)
(b).............................................. 7.02(b)
(c).............................................. 7.02(c)
Section 313 (a).............................................. 7.03(a)
(b).............................................. 7.03(b)
(c).............................................. 7.03(a), 7.03(b)
(d).............................................. 7.03(b)
Section 314 (a).............................................. 7.04
(b).............................................. Not Applicable
(c) (1).......................................... 1.02
(c) (2).......................................... 1.02
(c) (3).......................................... Not Applicable
(d).............................................. Not Applicable
(e).............................................. 1.02
Section 315 (a).............................................. 6.01(a)
(b).............................................. 6.02
(c).............................................. 6.01(b)
(d).............................................. 6.01(c)
(d) (1).......................................... 6.01(a), 6.01(c)
(d) (2).......................................... 6.01(c)
(d) (3).......................................... 6.01(c)
(e).............................................. 5.14
Section 316 (a)(1) (A)....................................... 5.12
(a) (1) (B)...................................... 5.02, 5.13
(a) (2).......................................... Not Applicable
(b).............................................. 5.08
Section 317 (a) (1).......................................... 5.03
(a) (2).......................................... 5.04
(b).............................................. 10.07
Section 318 (a).............................................. 1.07
- -----------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of this Indenture.
-vi-
<PAGE>
INDENTURE, dated as of ____________, between WPS RESOURCES CORPORATION,
a corporation duly organized and existing under the laws of the State of
Wisconsin (herein called the "COMPANY"), having its principal office at 700
North Adams Street, Green Bay, Wisconsin 54301 and ____________________________,
a _____________ organized and existing under and by virtue of the laws of the
______________, as Trustee (herein called the "TRUSTEE").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"SECURITIES"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, has been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
<PAGE>
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01 Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(4) the word "INCLUDING" (and with correlative meaning "INCLUDE")
means including, without limiting the generality of, any description
preceding such term; and
(5) the words "HEREIN," "HEREOF" and "HEREUNDER" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Seven, are defined in that
Article.
(a) "ACT," when used with respect to any Holder, has the meaning
specified in Section 1.04.
(b) "AFFILIATE" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
(c) "AUTHENTICATING AGENT" means any Person authorized by the Trustee
to act on behalf of the Trustee to authenticate Securities.
(d) "BANKRUPTCY LAW" means Title 11, U.S. Code or any similar federal
or state law for the relief of debtors.
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(e) "BOARD OF DIRECTORS" means the board of directors of the Company;
provided, however, that when the context refers to actions or resolutions of the
Board of Directors, then the term "Board of Directors" shall also mean any duly
authorized committee of the Board of Directors of the Company or Officer
authorized to act with respect to any particular matter to exercise the power of
the Board of Directors of the Company.
(f) "BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
(g) "BUSINESS DAY," when used with respect to any Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment are authorized or obligated
by law or regulation to close.
(h) "COMMISSION" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
(i) "COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
(j) "COMPANY REQUEST" or "COMPANY ORDER" means a written request or
order signed in the name of the Company by its Chairman of the Board, its
President or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Controller, an Assistant Controller, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
(k) "CORPORATE TRUST OFFICE" means the principal office of the Trustee
at which at any time its corporate trust business shall be administered, which
office at the date hereof is located at __________________________
_______________________________, or such other address as the Trustee may
designate from time to time by notice to the Holders and the Company, or the
principal corporate trust office of any successor Trustee (or such other address
as a successor Trustee may designate from time to time by notice to the Holders
and the Company).
(l) "COVENANT DEFEASANCE" has the meaning specified in Section 13.03.
(m) "CUSTODIAN" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
-3-
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(n) "DEBT" means any outstanding debt for money borrowed evidenced by
notes, debentures, bonds or other securities or guarantees of any thereof.
(o) "DEFAULT" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
(p) "DEFAULTED INTEREST" has the meaning specified in Section 3.07.
(q) "DEFEASANCE" has the meaning specified in Section 13.02.
(r) "DEPOSITARY" shall mean, unless otherwise specified pursuant to
Section 3.01 hereof, The Depository Trust Company, New York, New York, or any
successor thereto registered or qualified as a clearing agency under the
Securities Exchange Act of 1934, or other applicable statute or regulation.
(s) "DOLLARS" and "$" means lawful money of the United States of
America.
(t) "EVENT OF DEFAULT" has the meaning specified in Section 5.01.
(u) "EXCHANGE ACT" means the Securities and Exchange Act of 1934, as
amended from time to time, and the rules and regulations promulgated thereunder.
(v) "GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect on the date hereof, applied on a basis
consistent with those used in the preparation of any financial statements
referred to herein, unless otherwise stated herein.
(w) "GLOBAL SECURITY" shall mean a Security that, pursuant to Sections
3.01 and 3.03 hereof, is issued to evidence Securities, that is delivered to the
Depositary or pursuant to the instructions of the Depositary and that shall be
registered in the name of the Depositary or its nominee.
(x) "HOLDER" or "SECURITY HOLDER" means a Person in whose name a
Security is registered in the Security Register.
(y) "INDENTURE" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 3.01.
(z) "INTEREST," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
(aa) "INTEREST PAYMENT DATE," when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
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(bb) "MATURITY," when used with respect to any Security, means the date
on which the principal of such Security or an installment of principal becomes
due and payable as therein or herein provided, whether at the Stated Maturity or
by declaration of acceleration, call for redemption or otherwise.
(cc) "OFFICER" means the Chairman of the Board, the Vice-Chairman of
the Board, the President, any Vice President, the Treasurer, any Assistant
Treasurer, the Controller, the Secretary or any Assistant Secretary of the
Company.
(dd) "OFFICER'S CERTIFICATE" means a certificate signed by an Officer
and delivered to the Trustee.
(ee) "OPINION OF COUNSEL" means a written opinion of counsel, who may
be an employee of or counsel for the Company, and who shall be reasonably
acceptable to the Trustee.
(ff) "ORIGINAL ISSUE DISCOUNT SECURITY" means any Security, which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 5.02.
(gg) "OUTSTANDING," when used with respect to Securities or Securities
of any series, means, as of the date of determination, all such Securities
theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such Securities;
provided that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(iii) Securities which have been paid pursuant to Section 3.06
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company; and
(iv) Securities which have been defeased pursuant to Section
13.02;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (a) the principal
amount of an Original Issue Discount Security
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that shall be deemed to be Outstanding for such purposes shall be that portion
of the principal amount thereof that could be declared to be due and payable
upon the occurrence of an Event of Default and the continuation thereof pursuant
to the terms of such Original Issue Discount Security as of the date of such
determination and (b) Securities owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledge
establishes to the satisfaction of the Trustee the pledge's right so to act with
respect to such Securities and that the pledgee is not the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other
obligor.
(hh) "PAYING AGENT" means any Person authorized by the Company to pay
the principal of (and premium, if any) or interest on any Securities on behalf
of the Company. The Company may act as Paying Agent with respect to any
Securities issued hereunder.
(ii) "PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
(jj) "PLACE OF PAYMENT," when used with respect to the Securities of
any series, means the place or places where the principal of (and premium, if
any) and interest on the Securities of that series are payable as specified as
contemplated by Section 3.01.
(kk) "PREDECESSOR SECURITIES," of any particular security means every
previous Security evidencing all or any portion of the same debt as that
evidenced by such particular Security; and, for purposes of this definition, any
Securities authenticated and delivered under Section 3.06 in lieu of destroyed,
lost, or stolen Securities shall be deemed to evidence the same debt as the
destroyed, lost or stolen Securities.
(ll) "REDEMPTION DATE," when used with respect to any Security of any
series to be redeemed, means the date fixed for such redemption by or pursuant
to this Indenture.
(mm) "REDEMPTION PRICE," when used with respect to any Security of any
series to be redeemed, means the price at which it is to be redeemed pursuant to
this Indenture.
(nn) "REGULAR RECORD DATE" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 3.01.
(oo) "RESPONSIBLE OFFICER," when used with respect to the Trustee,
means any vice president, any assistant vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any senior trust
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officer, any trust officer or assistant trust officer, the controller or any
assistant controller or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
(pp) "SECURITIES" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
(qq) "SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective
meanings specified in Section 3.05.
(rr) "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
Securities, as the case may be, and (2) any indebtedness from the Company to any
Affiliate of the Company.
(ss) "SPECIAL RECORD DATE" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 3.07.
(tt) "STATED MATURITY," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
(uu) "SUBSIDIARY" of a Person means (i) any corporation of which more
than 50% of the outstanding securities having ordinary voting power shall at the
time be owned or controlled, directly or indirectly, by such Person or by one or
more of its Subsidiaries or by such Person and one or more of its Subsidiaries,
or (ii) any partnership, association, joint venture or similar business
organization of which more than 50% of the ownership interests having ordinary
voting power shall at the time be so owned or controlled. Unless otherwise
expressly provided, all references herein to a "Subsidiary" shall mean a
Subsidiary of the Company.
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(vv) "TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this Indenture was executed;
provided, however, that in the event that such Act is amended after such date,
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 as so amended.
(ww) "TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
(xx) "U.S. GOVERNMENT OBLIGATIONS" means securities which are (i)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed by the full
faith and credit of the United States of America which, in either case, are not
callable or redeemable at the option of the issuer thereof or otherwise subject
to prepayment, and shall also include a depository receipt issued by a New York
Clearing House bank or trust company as custodian with respect to any such U.S.
Government Obligation or a specific payment or interest on or principal of any
such U.S. Government Obligation held by such custodian for the account of the
holder of a depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt or from any amount held by the custodian in
respect of the U.S. Government Obligation or the specific payment of interest on
or principal of the U.S. Government Obligation evidenced by such depository
receipt.
(yy) "VICE PRESIDENT," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
SECTION 1.02. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, other than as action permitted
by Sections 2.03 and 7.04, the Company shall furnish to the Trustee an Officer's
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
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(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the opinion or each such individual,
such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by a opinion of, any specified Person, it is not necessary that all such
matters be certified by, or covered by the opinion of, only one such Person, or
that they be so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give
an opinion as to such matters in one or several documents.
Any certificate or opinion of an Officer may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such Officer knows, or in the exercise of reasonable care
should know, that the certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an Officer or Officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "ACT" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be
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sufficient for any purpose of this Indenture and (subject to Section 5.01)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner, which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by the
Security Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(e) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to a Board Resolution, fix in advance a record
date for the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Company
shall have no obligation to do so. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the Holders of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the
record date.
SECTION 1.05. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(i) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the
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Trustee and received by the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Department or
(ii) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this Indenture, attention:
Secretary, or at any other address previously furnished in writing to
the Trustee by the Company.
SECTION 1.06. Notice to Holders; Waiver.
Where this Indenture or any Security provides for notice to Holders of
any event, such notice shall be deemed sufficiently given (unless otherwise
herein or in such Security expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his
address as it appears in the Security Register, not later than the latest date,
and not earlier than the earliest date, prescribed for the giving of such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders or the validity of the proceedings to which such notice relates.
Where this Indenture or any Security provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
SECTION 1.07. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or shall be
excluded, as the case may be.
SECTION 1.08. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
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SECTION 1.09. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 1.10. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 1.12. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws (other than the choice of law provisions) of the State
of Wisconsin.
SECTION 1.13. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal (and premium, if any) need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day or on such other day as may be set out in the Officer's
Certificate pursuant to Section 3.01 at such Place of Payment with the same
force and effect as if made on the Interest Payment Date or Redemption Date, or
at the Stated Maturity, provided that no interest shall accrue for the period
from and after such Interest Payment Date, Redemption Date or Stated Maturity,
as the case may be.
SECTION 1.14. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Securityholder, by accepting
a Security, waives and, releases all such liability. Such waivers and releases
are part of the consideration for the issuance of the Securities.
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ARTICLE II
SECURITY FORMS
SECTION 2.01. Forms Generally.
The Securities of each series shall be in substantially such form as
shall be established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the Officers executing such Securities,
as evidenced by their execution of the Securities. If the form of Securities of
any series is established by action taken pursuant to a Board Resolution, a copy
of an appropriate record of such action shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior
to the delivery of the Company Order contemplated by Section 3.03 for the
authentication and delivery of such Securities.
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
The definitive Securities shall be photocopied, printed, lithographed
or engraved on steel engraved borders or may be produced in any other manner,
all as determined by the Officers executing such Securities, as evidenced by
their execution of such Securities.
SECTION 2.02. Form of Trustee's Certificate of Authentication.
Dated: _______________
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
----------------------------------------
As Trustee
By
----------------------------------------
Authorized Signatory
SECTION 2.03. Securities Issuable in the Form of a Global Security.
(a) If the Company shall establish pursuant to Section 3.01 hereof that
the Securities of a particular series are to be issued in whole or in part in
the form of one or more
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Global Securities, then the Company shall execute and the Trustee shall, in
accordance with Section 3.03 hereof and the Company Order delivered to the
Trustee hereunder, authenticate and deliver such Global Security or Securities,
which (i) represent, shall be denominated in an amount equal to the aggregate
principal amount of, and shall have the same terms as, the outstanding
Securities of such series to be represented by such Global Security or
Securities, (ii) shall be registered in the name of the Depositary or its
nominee, (iii) shall be delivered by the Trustee to the Depositary or pursuant
to the Depositary's instruction and (iv) shall bear a legend substantially to
the following effect: "This Security is a Global Security registered in the name
of the Depositary (referred to herein) or a nominee thereof and, unless and
until it is exchanged in whole or in part for the individual Securities
represented hereby, this Global Security may not be transferred except as a
whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary. Unless this Global Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York), to the Trustee for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment is made to Cede & Co., any transfer, pledge or other use hereof for
value or otherwise by or to any person is wrongful since the registered owner
hereof, Cede & Co., has an interest herein" or such other legend as may be
required by the rules and regulations of the Depositary.
(b) Notwithstanding any other provision of Section 3.05 hereof or of
this Section 2.03, unless the terms of a Global Security expressly permit such
Global Security to be exchanged in whole or in part for individual Securities, a
Global Security may be transferred, in whole but not in part, only as described
in the legend thereto.
(c) (i) If at any time the Depositary for a Global Security notifies
the Company that it is unwilling or unable to continue as Depositary for such
Global Security or if at any time the Depositary for the Global Security shall
no longer be eligible or in good standing under the Exchange Act or other
applicable statute or regulation, the Company shall appoint a successor
Depositary with respect to such Global Security. If a successor Depositary for
such Global Security is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the
Company's election pursuant to Section 3.01(3) hereof shall no longer be
effective with respect to the series of Securities evidenced by such Global
Security and the Company shall execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of individual Securities of
such series in exchange for such Global Security, shall authenticate and
deliver, individual Securities of such series of like tenor and terms in
definitive form in an aggregate principal amount equal to the principal amount
of the Global Security in exchange for such Global Security. The Trustee shall
not be charged with knowledge or notice of the ineligibility of a Depositary
unless a responsible officer assigned to and working in its corporate trustee
administration department shall have actual knowledge thereof.
(ii) The Company may at any time and in its sole discretion determine
that all Outstanding (but not less than all) Securities of a series issued or
issuable in the form of
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one or more Global Securities shall no longer be represented by such Global
Security or Securities. In such event the Company shall execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
individual Securities in exchange for such Global Security, shall authenticate
and deliver individual Securities of like tenor and terms in definitive form in
an aggregate principal amount equal to the principal amount of such Global
Security or Securities in exchange for such Global Security or Securities.
(iii) In any exchange provided for in any of the preceding two
paragraphs, the Company will execute and the Trustee will authenticate and
deliver individual Securities in definitive registered form in authorized
denominations. Upon the exchange of a Global Security for individual Securities,
such Global Security shall be cancelled by the Trustee. Securities issued in
exchange for a Global Security pursuant to this Section shall be registered in
such names and in such authorized denominations as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver
such Securities to the Depositary for delivery to the persons in whose names
such Securities are so registered, or if the Depositary shall refuse or be
unable to deliver such Securities, the Trustee shall deliver such Securities to
the persons in whose names such Securities are registered, unless otherwise
agreed upon between the Trustee and the Company, in which event the Company
shall cause the Securities to be delivered to the persons in whose names such
Securities are registered.
(d) Neither the Company, the Trustee, any Authenticating Agent nor any
paying agent shall have any responsibility or liability for any aspect of the
records relating to, or payments made on account of, beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interest.
(e) Pursuant to the provisions of this subsection, at the option of the
Trustee and upon 30 days' written notice to the Depositary but not prior to the
first Interest Payment Date of the respective Global Securities of the same
series, the Depositary shall be required to surrender any two or more Global
Securities of the same series which have identical terms, including, without
limitation, identical maturities, interest rates and redemption provisions to
the Trustee, and the Company shall execute and the Trustee shall authenticate
and deliver to, or at the direction of, the Depositary a Global Security of the
same series in principal amount equal to the aggregate principal amount of, and
with all terms identical to, the Global Securities surrendered thereto. The
exchange contemplated in this subsection shall be consummated at least 30 days
prior to any Interest Payment date applicable to any of the Global Securities
surrendered to the Trustee. Upon any exchange of any Global Security, whether
pursuant to this Section or pursuant to Section 3.05 or Section 11.07 hereof,
the aggregate principal amount of the Securities or a series shall be the same
before and after such exchange, after giving effect to any retirement of
Securities of such series.
SECTION 2.04. CUSIP Number.
The Company in issuing Securities of any series may use a "CUSIP"
number, and, if so, the Trustee may use the CUSIP number in notices of
redemption or exchange as a
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convenience to Holders of such series; provided, that any such notice may state
that no representation is made as to the correctness or accuracy of the CUSIP
number printed on the notice or on the Securities of such series, and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Trustee of any
change in the CUSIP number of any series of Securities.
SECTION 2.05. Payment of Securities.
Payment of the principal, interest and premium on all Securities shall
be payable as follows:
(a) On or before 9:30 a.m., New York City time, or such other time as
shall be agreed upon between the Trustee and the Company, of the day on which
payment of principal, interest and premium is due on any Global Security
pursuant to the terms thereof, the Company shall deliver to the Trustee funds
available on such date sufficient to make such payment, by wire transfer of
immediately available funds or by instructing the Trustee to withdraw sufficient
funds from an account maintained by the Company with the Trustee or such other
method as is acceptable to the Trustee. On or before 10:00 a.m., New York City
time, or such other time as shall be agreed upon between the Trustee and the
Depositary, of the day on which any payment of interest is due on any Global
Security (other than at maturity), the Trustee shall pay to the Depositary such
interest in same day funds. On or before 10:00 a.m., New York City time or such
other time as shall be agreed upon between the Trustee and the Depositary, of
the day on which principal, interest payable at maturity and premium, if any, is
due on any Global Security, the Trustee shall deposit with the Depositary the
amount equal to the principal, interest payable at maturity and premium, if any,
by wire transfer into the account specified by the Depositary. As a condition to
the payment, at maturity or upon redemption, of any part of the principal or
interest on and applicable premium of any Global Security, the Depositary shall
surrender, or cause to be surrendered, such Global Security to the Trustee,
whereupon a new Global Security shall be issued to the Depositary pursuant to
Section 3.05 hereof.
(b) With respect to any Security that is not a Global Security,
principal, applicable premium and interest due at the maturity of the Security
shall be payable in immediately available funds when due upon presentation and
surrender of such Security at the corporate trust office of the Trustee or at
the authorized office of any paying agent. Interest on any Security that is not
a Global Security (other than interest payable at maturity) shall be paid by
check mailed to the Holder thereof at such Holder's address as it appears on the
register by check payable in clearinghouse funds; provided that if the Trustee
receives a written request from any Holder of Securities, the aggregate
principal amount of which having the same Interest Payment Date equals or
exceeds $10,000,000, on or before the applicable Regular Record Date for such
Interest Payment Date, interest shall be paid by wire transfer of immediately
available funds to a bank within the continental United States designated by
such Holder in its request or by direct deposit into the account of such Holder
designated by such Holder in its request if such account is maintained with the
Trustee or any paying agent.
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ARTICLE III
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more series.
There shall be established in or pursuant to a Board Resolution, and set forth
in an Officer's Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Sections 3.04, 3.05, 3.06, 9.06 or
11.07);
(3) whether any Securities of the series are to be issuable in
permanent global form with or without coupons and, if so, (i) whether
beneficial owners of interests in any such permanent global Security
may exchange such interests for Securities of such series and of like
tenor of any authorized form and denomination and the circumstances
under which any such exchanges may occur, if other than in the manner
provided in Sections 2.03 and 3.05, and (ii) the name of the Depositary
with respect to any global Security;
(4) the date or dates on which the principal of the Securities
of the series is payable;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such interest shall
be payable and the Regular Record Date for the interest payable on any
Interest Payment Date and, if applicable to such series of Securities,
the basis points and United States Treasury rate(s) and any other rates
to be used in calculating the reset rate;
(6) the place or places where the principal of (and premium,
if any) and interest on Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the Company,
pursuant to any sinking fund or otherwise;
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(8) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation, and, where applicable, the obligation of the Company to
select the Securities to be redeemed;
(9) the denominations in which Securities of the series shall
be issuable;
(10) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 5.02;
(11) additional Events of Default with respect to Securities
of the series, if any, other than those set forth herein;
(12) if either or both of Section 13.02 and Section 13.03
shall be inapplicable to the Securities of the series (provided that if
no such inapplicability shall be specified, then both Section 13.02 and
Section 13.03 shall be applicable to the Securities of the series);
(13) if other than U.S. dollars, the currency or currencies or
units based on or related to currencies in which the Securities of such
series shall be denominated and in which payments or principal of, and
any premium and interest on, such Securities shall or may by payable;
(14) additional covenants with respect to Securities of the
series, if any, other than those set forth herein;
(15) if other than the Trustee, the identity of the Registrar
and any Paying Agent; and
(16) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such Board Resolution and set forth in such Officer's Certificate or in any
such Indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officer's
Certificate setting forth, or providing the manner for determining, the terms of
the Securities of such series.
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SECTION 3.02. Denominations.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 3.01. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President or one of
its Vice Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile. The seal of the Company
may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Securities. Typographical and other
minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any Security that
has been duly authenticated and delivered by the Trustee.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and make such Securities available for
delivery. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 2.01 and 3.01, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Sections 315(a)
through (d) of the Trust Indenture Act) shall be fully protected in relying
upon, an Opinion of Counsel stating,
(a) that the form of such Securities has been established in conformity
with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 3.01, that such terms have
been established in conformity with the provisions of this Indenture;
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their terms, except
to the extent enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws
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affecting the enforcement of creditors' rights generally and by the effect of
general principles of equity (regardless of whether enforceability is considered
in a proceeding in equity or at law);
(d) that no consent, approval, authorization, order, registration or
qualification of or with any court or any governmental agency or body having
jurisdiction over the Company is required for the execution and delivery of such
Securities by the Company, except such as have been obtained (except that no
opinion need be expressed as to state securities or Blue Sky laws).
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee, or in the written opinion of
counsel to the Trustee (which counsel may be an employee of the Trustee) such
authentication may not lawfully be made or would involve the Trustee in personal
liability.
Notwithstanding the provisions of Section 3.01 and of the immediately
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officer's
Certificate otherwise required pursuant to Section 3.01 or the Company Order and
Opinion of Counsel otherwise required pursuant to the immediately preceding
paragraph at or prior to the time of authentication of each Security of such
series if such documents are delivered at or prior to the authentication upon
original issuance of the first Security of such series to be issued.
If the Company shall establish pursuant to Section 3.01 that the
Securities of a series are to be issued in the form of one or more global
Securities, then the Company shall execute and the Trustee shall, in accordance
with this section and the Company Order with respect to the authentication and
delivery of such series, authenticate and deliver one or more global Securities
that (i) shall be in an aggregate amount equal to the aggregate principal amount
specified in such Company Order, (ii) shall be registered in the name of the
Depositary therefor or its nominee, and (iii) shall be made available for
delivery by the Trustee to the Depositary or pursuant to the Depositary's
instruction.
Each depositary designated pursuant to Section 3.01 must, at the time
of its designation and at all times while it serves as depositary, be a clearing
agency registered under the Exchange Act and any other applicable statute or
regulation.
Unless otherwise provided for in the form of Security, each Security
shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture.
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SECTION 3.04. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
make available for delivery, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities.
In the case of Securities of any series, such temporary Securities may
be in global form, representing all or a portion of the Outstanding Securities
of such series.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions of Section 3.05), if temporary
Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company in a Place of Payment for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of any
series, the Company shall execute and the Trustee shall authenticate and make
available for delivery in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations and of like
tenor. Until so exchanged, the temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities of such series.
If temporary Securities of any series are issued in global form, any
such temporary global Security shall, unless otherwise provided therein, be
delivered to the office of the Depositary therefor for credit to the respective
accounts of the beneficial owners of such Securities (or to such other accounts
as they may direct).
SECTION 3.05. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "SECURITY REGISTER") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of registration of transfers of Securities. The
Trustee is hereby appointed "SECURITY REGISTRAR" for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency of the Company in Place of Payment for that
series, the Company shall execute, and the Trustee shall authenticate and make
available for delivery, in the name of the designated transferee or transferees,
one or more new Securities of the same series, of any authorized denominations
and of a like aggregate principal amount and Stated Maturity.
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At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and Stated Maturity, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any Securities are
so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, the Securities which the Holder
making the exchange is entitled to receive.
If the principal amount and applicable premium, of part but not all of
a Global Security is paid, then upon surrender to the Trustee of such Global
Security, the Company shall execute and the Trustee shall authenticate, deliver
and register a Global Security in an authorized denomination in aggregate
principal amount equal to, and having the same terms and of the same series as,
the unpaid portion of such Global Security.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided in the Securities to be transferred or
exchanged, no service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.04, 9.06 or 11.07 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 11.03 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity
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as may be required by them to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company shall execute
and upon its request the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security, a new Security of the same series and
of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.07. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "DEFAULTED INTEREST") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an
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amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Section 3.07 provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the
name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of
Securities of such series at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities of
such series (or their respective Predecessor Securities) are registered
at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this Section 3.07, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.08. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Section 3.07) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee or any agent of the Company or the
Trustee shall have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interest of a
Security in global form, or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interest. Notwithstanding the
foregoing, with respect to any Security in global form, nothing
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herein shall prevent the Company or the Trustee or any agent of the Company or
the Trustee from giving effect to any written certification, proxy or other
authorization furnished by any Depositary (or its nominee), as a Holder, with
respect to such Security in global form or impair, as between such Depositary
and owners of beneficial interests in such Security in global form, the
operation of customary practices governing the exercise of the right of such
Depositary (or its nominee) as holder of such Security in global form.
SECTION 3.09. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by this Indenture. All cancelled Securities shall be held by the Trustee and may
be destroyed (and, if so destroyed, certification of their destruction shall be
delivered to the Company, unless, by a Company Order, the Company shall direct
that cancelled Securities be returned to it).
SECTION 3.10. Computation of Interest.
Except as otherwise specified as contemplated by Section 3.01 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a year of twelve 30-day months.
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ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for or in the form of Security for such series), when the
Trustee, upon Company Request and at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when
(a) either
(1) all Securities theretofore authenticated and delivered (other than
(A) Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.06 and (B) Securities for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 10.07) have been delivered to the Trustee for
cancellation; or
(2) all such Securities not theretofore delivered to the Trustee for
cancellation
(A) have become due and payable, or
(B) will become due and payable at their Stated Maturity within one
year, or
(C) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (A), (B) or (C) above, has deposited with the
Trustee as trust funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore delivered
to the Trustee for cancellation, for principal (and premium, if any) and
interest to the date of such deposit (in the case of Securities which have
become due and payable) or the Stated Maturity or Redemption Date, as the case
may be;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for herein relating to the satisfaction and
discharge of this Indenture have been complied with.
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Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07, the obligations of
the Company to any Authenticating Agent under Section 6.14 and, if money shall
have been deposited with the Trustee pursuant to subclause (2) of clause (a) of
this Section 4.01, the obligations of the Trustee under Section 4.02 and the
last paragraph of Section 10.07 shall survive.
If the Company shall have paid or caused to be paid in whole or in part
the principal of and premium, if any, and interest on any Security, as and when
the same shall become due and payable or the Company shall have delivered to the
Trustee for cancellation any outstanding Security, such Security shall cease to
be entitled to the lien, benefit or security interest under this Indenture to
the extent of such amounts paid.
SECTION 4.02. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.07, all
money deposited with the Trustee pursuant to Section 4.01 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with or
received by the Trustee.
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ARTICLE V
REMEDIES
SECTION 5.01. Events of Default.
"EVENT OF DEFAULT," wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or to be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(1) the Company defaults in the payment of interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days; or
(2) the Company defaults in the payment of the principal of
(or premium, if any, on) any Security when the same becomes due and
payable at Maturity, upon redemption (including redemptions under
Article XI), or otherwise; or
(3) the Company fails to observe or perform any of its other
covenants, warranties or agreements in the Securities of that series or
this Indenture (other than a covenant, agreement or warranty a default
in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of series of Securities other than
that series), and the failure to observe or perform continues for 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
Outstanding Securities of that series; or
(4) the Company pursuant to or within the meaning of any
Bankruptcy Law (A) commences a voluntary case or proceeding under any
Bankruptcy Law with respect to itself, (B) consents to the entry of a
judgment, decree or order for relief against it in an involuntary case
or proceeding under any Bankruptcy Law, (C) consents to or acquiesces
in the institution of bankruptcy or insolvency proceedings against it,
(D) applies for, consents to or acquiesces in the appointment of or
taking possession by a Custodian of the Company or for any material
part of its property, (E) makes a general assignment for the benefit of
its creditors or (F) takes any corporate action in furtherance of or to
facilitate, conditionally or otherwise, any of the foregoing; or
(5) (i) a court of competent jurisdiction enters a judgment,
decree or order for relief in respect of the Company in an involuntary
case or proceeding under any Bankruptcy Law which shall (A) approve as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition in respect of the Company, (B) appoint a
Custodian of the Company or for any material part of its property or
(C)
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order the winding-up or liquidation of its affairs, and such judgment,
decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or (ii) any bankruptcy or insolvency petition or
application is filed, or any bankruptcy or insolvency proceeding is
commenced against the Company and such petition, application or
proceeding is not dismissed within 60 days; or (iii) a warrant of
attachment is issued against any material portion of the property of
the Company which is not released within 60 days of service, or
(6) any other Event of Default provided with respect to
Securities of that series.
A Default under clause (3) above is not an Event of Default until the
Trustee or the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of that series notify the Company of the Default and the
Company does not cure the Default within 60 days after receipt of the notice.
SECTION 5.02. Acceleration of Maturity and Rescission.
If an Event of Default with respect to Securities of any series (other
than an Event of Default specified in clause (4) or (5) of Section 5.01) occurs
and is continuing, the Trustee by notice in writing to the Company, or the
Holders of at least 25% in aggregate principal amount of the Outstanding
Securities of that series by notice in writing to the Company and the Trustee,
may declare the unpaid principal of and accrued interest to the date of
acceleration (or, if the Securities of that series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of that series) on all the Outstanding Securities of that series to be due
and payable immediately and, upon any such declaration, the Outstanding
Securities of that series (or specified principal amount) shall become and be
immediately due and payable.
If an Event of Default specified in clause (4) or (5) of Section 5.01
occurs, all unpaid principal of and accrued interest on the Outstanding
Securities of that series (or specified principal amount) shall ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder of any Security of that series.
Upon payment of all such principal and interest, all of the Company'
obligations under the Securities of that series and (upon payment of the
Securities of all series) this Indenture shall terminate, except obligations
under Section 6.07.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of that series by notice to the Trustee may rescind an
acceleration and its consequences if (i) all existing Events of Default, other
than the nonpayment of the principal of and interest on the Securities of that
series that has become due solely by such declaration of acceleration, have been
cured or waived, (ii) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and overdue principal that has
become due otherwise than by such declaration of acceleration have been paid,
(iii) the rescission would
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not conflict with any judgment or decree of a court of competent jurisdiction
and (iv) all payments due to the Trustee and any predecessor Trustee under
Section 6.07 have been made.
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable, (A) if such
default occurs prior to the Release Date, and such default continues
for a period of 90 days, or (B) if such default occurs on or after the
Release Date, such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at Maturity, upon redemption
(including redemption under Article XII) or otherwise,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the rate
or rates prescribed therefor in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the reasonable costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default hereunder occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders of Securities by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to secure
any other proper remedy.
SECTION 5.04. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the
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principal of the Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Securities and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agent and counsel) and
of the Holders allowed in such judicial proceedings, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding
is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 5.05. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 5.06. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article in respect
of the Securities of any series shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, upon
presentation of the Securities in respect of which moneys have been collected
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
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First: To the payment of all amounts due the Trustee under Section 6.07
applicable to such series;
Second: To the payment of the amounts then due and unpaid for principal
of (and premium, if any) and interest on the Securities of such series in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Securities of such series for principal (and premium, if
any) and interest, respectively; and
Third: To the Company.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 5.06. At least fifteen (15) days before such
record date, the Trustee shall mail to each Holder and the Company a notice that
states the record date, the payment date and the amount to be paid.
SECTION 5.07. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of Holders of Securities of
any series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other of such Holders, or to obtain or to seek to obtain priority
or preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all Holders of Securities of the affected series.
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SECTION 5.08. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 3.07) interest on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
SECTION 5.09. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding has been instituted.
SECTION 5.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 3.06, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 5.12. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that:
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(1) such direction shall not be in conflict with any rule of
law or with this Indenture;
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; and
(3) subject to Section 6.01, the Trustee need not take any
action which might involve the Trustee in personal liability or be
unduly prejudicial to the Holders not joining therein.
SECTION 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may by written notice to the Trustee on
behalf of the Holders of all the Securities of such series waive any Default or
Event of Default with respect to such series and its consequences, except a
Default or Event of Default
(1) in respect of the payment of the principal of (or premium,
if any) or interest on any Security of such series, or
(2) in respect of a covenant or other provision hereof which
under Article IX cannot be modified or amended without the consent of
the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such Default or Event of Default shall cease to
exist and shall be deemed to have been cured, for every purpose of this
Indenture and the Securities of such series; but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereon.
SECTION 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest on any Security on or after the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date).
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SECTION 5.15. Waiver of Stay or Extension.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim, and will actively resist any and all efforts to be compelled to take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and (to the extent that it may lawfully do so) the Company
hereby expressly waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
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ARTICLE VI
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities of the Trustee.
(a) Except during the continuance of an Event of Default, the Trustee's
duties and responsibilities under this Indenture shall be governed by Section
315 (a) of the Trust Indenture Act.
(b) In case an Event of Default has occurred and is continuing, and is
known to the Trustee, the Trustee shall exercise the rights and powers vested in
it by this Indenture, and shall use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(c) None of the provisions of Section 315 (d) of the Trust Indenture
Act shall be excluded from this Indenture.
SECTION 6.02. Notice of Defaults.
Within 30 days after the occurrence of any Default or Event of Default
with respect to the Securities of any series, the Trustee shall give to all
Holders of Securities of such series, as their names and addresses appear in the
Security Register, notice of such Default or Event of Default known to the
Trustee, unless such Default or Event of Default shall have been cured or
waived; provided, however, that, except in the case of a Default or Event of
Default in the payment of the principal of (or premium, if any) or interest on
any Security of such series or in the payment of any sinking fund installment
with respect to Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
interest of the Holders of Securities of such series.
SECTION 6.03. Certain Rights of Trustee.
Subject to the provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
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(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity to its reasonable satisfaction
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) prior to the occurrence of an Event of Default with respect to the
Securities of any series and after the curing or waiving of all such Events of
Default which may have occurred, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, approval or other paper or document, or the books and records of the
Company, unless requested in writing to do so by the Holders of a majority in
principal amount of the outstanding Securities of any series; provided, however,
that if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is not, in the opinion of the Trustee, reasonably assured to the
Trustee by the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such costs, expenses or
liabilities as a condition to so proceeding; the reasonable expense of every
such investigation shall be paid by the Company or, if paid by the Trustee,
shall be repaid by the Company upon demand;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities.
The recitals herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee or any Authenticating Agent assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
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SECTION 6.05. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
6.08 and 6.13, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 6.06. Money Held in Trust.
Money held by the Trustee in trust hereunder (including amounts held by
the Trustee as Paying Agent) need not be segregated from other funds except to
the extent required by law. The Trustee may allow and credit the Company
interest on any money received by it hereunder at such rate, if any, as may be
agreed upon by the Company and the Trustee from time to time as may be permitted
by law.
SECTION 6.07. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability, damage, claim or expense, including taxes
(other than taxes based upon or determined or measured by the income of
the Trustee), incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 5.01(4) or Section 5.01(5), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law.
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The provisions of this Section 6.07 shall survive this Indenture.
SECTION 6.08. Disqualification; Conflicting Interests.
The Trustee shall be disqualified only where such disqualification is
required by Section 310(b) of the Trust Indenture Act. Nothing shall prevent the
Trustee from filing with the Commission the application referred to in the
second to last paragraph of Section 310(b) of the Trust Indenture Act.
SECTION 6.09. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be eligible
to act as Trustee under Section 310(a) (1) of the Trust Indenture Act having a
combined capital and surplus of at least $50,000,000 subject to supervision or
examination by federal or State authority. If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. Neither the Company nor any Person directly or indirectly
controlling, controlled by, or under common control with the Company may serve
as Trustee. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 6.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 6.11 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of
the Trust Indenture Act after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a Security for at
least six months; or
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(2) the Trustee shall cease to be eligible under Section 6.09
and shall fail to resign after written request therefor by the Company
or by any such Holder of a Security who has been a bona fide Holder of
a Security for at least six months; or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 315(e) of the
Trust Indenture Act, any Holder who has been a bona fide Holder of a Security
for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee with respect to all Securities and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
6.11, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company with
respect to such Securities. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company or the
Holders and accepted appointment in the manner required by Section 6.11, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to all
Holders of Securities of such series as their names and addresses appear in the
Security Register. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its Corporate
Trust Office.
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SECTION 6.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture, the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
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(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under the Trust Indenture Act.
SECTION 6.12. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 6.13. Preferential Collection of Claims Against Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent indicated therein.
SECTION 6.14. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding the Trustee
may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of, and subject to the
direction of, the Trustee to authenticate Securities of such series issued upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 3.06, and Securities so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall
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be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
Form of Authenticating Agent's
Certificate of Authentication
Dated:
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This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
-----------------------------------
As Trustee
By
-----------------------------------
As Authenticating Agent
By
-----------------------------------
Authorized Signatory
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ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than January 1 and July 1 in each year, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders as of the preceding December 15 or June 15, as the case
may be; and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
provided, however, that so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
SECTION 7.02. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.01 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.02 upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as "applicants") apply
in writing to the Trustee, and furnish to the Trustee reasonable proof that each
such applicant has owned a Security for a period of at least six months
preceding the date of such application, and such application states that the
applicants desire to communicate with other Holders with respect to their rights
under this Indenture or under the Securities and is accompanied by a copy of the
form of proxy or other communication which such applicants propose to transmit,
then the Trustee shall, within five Business Days after the receipt of such
application, at its election, either
(i) afford such applicants access to the information preserved
at the time by the Trustee in accordance with Section 7.02(a); or
(ii) inform such applicants as to the approximate number of
Holders whose names and addresses appear in the information preserved
at the time by the Trustee in accordance with Section 7.02 (a), and as
to the approximate cost of mailing to such Holders the form of proxy or
other communication, if any, specified in such application.
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If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder whose name and address appears in the information preserved
at the time by the Trustee in accordance with Section 7.02 (a) a copy of the
form of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to be mailed
and of payment, or provision for the payment, of the reasonable expenses of
mailing, unless within five days after such tender the Trustee shall mail to
such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interest of the Holders
or would be in violation of applicable law. Such written statement shall specify
the basis of such opinion. If the Commission, after opportunity for a hearing
upon the objections specified in the written statement so filed, shall enter an
order refusing to sustain any of such objections or if, after the entry of an
order sustaining one or more of such objections, the Commission shall find,
after notice and opportunity for hearing, that all objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies of
such material to all such Holders with reasonable promptness after the entry of
such order and the renewal of such tender; otherwise the Trustee shall be
relieved of any obligation or duty to such applicants respecting their
application.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the company nor the Trustee
nor any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with Section 7.02(b), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 7.02(b).
SECTION 7.03. Reports by Trustee.
(a) Within 60 days after May 15 of each year, the Trustee shall
transmit by mail to all Holders of Securities as provided in Section 313(c) of
the Trust Indenture Act, a brief report dated as of May 15, if required by and
in compliance with Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall from time to time transmit by mail to all Holders
of Securities as provided in Section 313(c) of the Trust Indenture Act brief
reports that comply, both as to content and date of delivery, with Section
313(b) of the Trust Indenture Act (to the extent required by such Section).
(c) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
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SECTION 7.04. Reports by Company.
The Company shall:
(1) file with the Trustee, within 30 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not required
to file information, documents or reports pursuant to either of said
Sections, then it shall file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations;
(3) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, within 30 days after the
filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission; and
(4) furnish to the Trustee, on or before May 1 of each year, a
brief certificate from the principal executive officer, principal
financial officer or principal accounting officer as to his or her
knowledge of the Company's compliance with all conditions and covenants
under this Indenture. For purposes of this paragraph, such compliance
shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture. Such certificate
need not comply with Section 1.02.
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ARTICLE VIII
CONSOLIDATION, MERGER, LEASE, SALE OR TRANSFER
SECTION 8.01. Then Company May Merge, Etc.
The Company shall not consolidate with, or merge with or into any other
corporation (whether or not the Company shall be the surviving corporation), or
sell, assign, transfer or lease all or substantially all of its properties and
assets as an entirety or substantially as an entirety to any Person or group of
affiliated Persons, in one transaction or a series of related transactions,
unless:
(1) either the Company shall be the continuing Person or the
Person (if other than the Company) formed by such consolidation or with
which or into which the Company is merged or the Person (or group of
affiliated Persons) to which all or substantially all the properties
and assets of the Company as an entirety or substantially as an
entirety are sold, assigned, transferred or leased shall be a
corporation (or constitute corporations) and shall expressly assume, by
an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, all the obligations of
the Company under the Securities and this Indenture; and
(2) immediately before and after giving effect to such
transaction or series of related transactions, no Event of Default, and
no Default, shall have occurred and be continuing.
SECTION 8.02. Opinion of Counsel.
The Company shall deliver to the Trustee prior to the proposed
transaction(s) covered by Section 8.01 an Officer's Certificate and an Opinion
of Counsel stating that the transaction(s) and such supplemental indenture
comply with this Indenture and that all conditions precedent to the consummation
of the transaction(s) under this Indenture have been met.
SECTION 8.03. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the Company
into any other corporation or any lease, sale, assignment, or transfer of all or
substantially all of the property and assets of the Company in accordance with
Section 8.01, the successor corporation formed by such consolidation or into
which the Company is merged or the successor corporation or affiliated group of
corporations to which such lease, sale, assignment, or transfer is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
corporation or corporations had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor corporation or
corporations shall be relieved of all obligations and covenants under this
Indenture and the Securities and in the event of such conveyance or transfer,
except in the case of a lease, any such predecessor corporation may be dissolved
and liquidated.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders.
Without notice to or the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default with respect to
all or any series of Securities; or
(4) to add or change any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the
issuance of Securities in bearer form, registrable or not registrable
as to principal, and with or without interest coupons; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
(6) to establish the form or terms of Securities of any series
as permitted by Sections 2.01 and 3.01; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.11(b); or
(8) to cure any ambiguity, defect or inconsistency or to
correct or supplement any provision herein which may be inconsistent
with any other provision herein; or
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(9) to make any change that does not materially adversely
affect the interests of the Holders of Securities of any series.
Upon request of the Company, accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon receipt
by the Trustee of the documents described in (and subject to the last sentence
of) Section 9.03, the Trustee shall join with the Company in the execution of
any supplemental indenture authorized or permitted by the terms of this
Indenture.
SECTION 9.02. Supplemental Indentures with Consent of Holders.
With the written consent of the Holders of a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee
shall, subject to Section 10.03, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof or extend the time for payment
thereof, or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.02, or
change any Place of Payment where, or the coin or currency in which,
any Security or any premium or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date); or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver of compliance with certain
provisions of this Indenture or Defaults or Events of Default hereunder
and their consequences provided for in this Indenture; or
(3) change the redemption provisions (including Article XI)
hereof in a manner adverse to such Holder; or
(4) modify any of the provisions of this Section or Section
5.13, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to
require the consent of any Holder with respect to changes in the
references
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to "the Trustee" and concomitant changes in this Section, or the
deletion of this proviso, in accordance with the requirements of
Sections 6.11(b) and 9.01(7).
A supplemental indenture which changes or eliminates any covenant or other
provisions of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures.
The Trustee shall sign any supplemental indenture authorized pursuant
to this Article, subject to the last sentence of this Section 9.03. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 6.01) shall be fully protected in relying upon, an Officer's
Certificate and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 9.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.06. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
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ARTICLE X
COVENANTS
SECTION 10.01. Payments of Principal and Interest.
With respect to each series of Securities, the Company will duly and
punctually pay the principal of (and premium, if any) and interest on such
Securities in accordance with their terms and this Indenture, and will duly
comply with all the other terms, agreements and conditions contained in, or made
in the Indenture for the benefit of, the Securities of such series.
SECTION 10.02. Maintenance of Office or Agency.
The Company will maintain an office or agency in each Place of Payment
where Securities may be surrendered for registration of transfer or exchange or
for presentation for payment, where notices and demands to or upon the Company
in respect of the Securities and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and any change in
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the address of the Trustee as set forth in Section
1.05.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
Unless otherwise set forth in, or pursuant to, a Board Resolution or
Indenture supplemental hereto with respect to a series of Securities, the
Company hereby initially designates the Corporate Trust Office of
____________________________, in ____________, _________, as such office of the
Company.
SECTION 10.03. Corporate Existence.
Subject to Article VIII, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the rights (charter and statutory) and franchises of the Company;
provided, however, that the Company shall not be required to preserve any such
right or franchise if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company.
SECTION 10.04. Payment of Taxes and Other Claims.
The Company will pay or discharge, or cause to be paid or discharged,
before the same shall become delinquent, (l) all material taxes, assessments and
governmental charges
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levied or imposed upon the Company or upon the income, profits or property of
the Company, and (2) all lawful claims for labor, materials and supplies which,
if unpaid, might by law become a material lien upon the property of the Company;
provided, however, that the Company shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings and for which adequate provision has been made.
SECTION 10.05. Maintenance of Properties.
The Company will cause all material properties used or useful in the
conduct of its business to be maintained and kept in good condition, repair and
working order (normal wear and tear excepted) and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties, or
disposing of any of them, if such discontinuance or disposal is, in the judgment
of the Board of Directors, desirable in the conduct of the business of the
Company.
SECTION 10.06. Certificates Respecting Defaults.
The Company shall deliver to the Trustee forthwith upon becoming aware
of a Default or Event of Default (but in no event later than 10 days after the
occurrence of each Default or Event of Default that is continuing), an Officer's
Certificate setting forth the details of such Default or Event of Default and
the action that the Company proposes to take with respect thereto and the
specific section or sections of this Indenture in connection with which such
Default or Event of Default has occurred.
SECTION 10.07. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of (and
premium, if any) or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure to so act.
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The Company will cause each Paying Agent for any series of Securities
(other than the Trustee) to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Securities of that series in
trust for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of
any payment of principal And premium, if any) or interest on the
Securities of that series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Security of any series and remaining unclaimed for two
years after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in New York, New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance or such money then remaining
will be repaid to the Company.
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ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.01. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.01 for Securities of any
series) in accordance with this Article.
SECTION 11.02. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution. In case of any redemption at the election of the Company
of less than all the Securities of any series, the Company shall, at least 45
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date and of the principal amount of Securities of such series to be redeemed. In
the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officer's Certificate evidencing compliance with such restriction.
SECTION 11.03. Election by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 90 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, substantially pro rata, by lot
or by any other method as the Trustee considers fair and appropriate and that
complies with the requirements of the principal national securities exchange, if
any, on which such Securities are listed, and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series; provided that
in case the Securities of such series have different terms and maturities, the
Securities to be redeemed shall be selected by the Company and the Company shall
give notice thereof to the Trustee.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of the Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in part,
to the portion of the principal amount of such Securities which has been or is
to be redeemed.
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SECTION 11.04. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 45 days prior to the Redemption
Date, unless otherwise provided in an indenture supplemental hereto, to each
Holder of Securities to be redeemed, at his address appearing in the Security
Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be
redeemed;
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date;
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price;
(6) that the redemption is for a sinking fund, if such is the
case;
(7) the CUSIP number, if any, of the Securities to be
redeemed; and
(8) unless otherwise provided as to a particular series of
Securities, if at the time of publication or mailing of any notice of
redemption the Company shall not have deposited with the Trustee or
Paying Agent and/or irrevocably directed the Trustee or Paying Agent to
apply, from money held by it available to be used for the redemption of
Securities, an amount in cash sufficient to redeem all of the
Securities called for redemption, including accrued interest to the
Redemption Date, such notice shall state that it is subject to the
receipt of the redemption moneys by the Trustee or Paying Agent before
the Redemption Date (unless such redemption is mandatory) and such
notice shall be of no effect unless such moneys are so received before
such date.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 11.05. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.07) an amount of
money sufficient to pay the Redemption
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Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that date.
SECTION 11.06. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Regular or Special Record Dates
according to their terms and the provisions of Section 3.07.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 11.07. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at an office or agency of the Company at a Place of Payment therefor (with, if
the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing), and
the Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series and Stated Maturity, of any authorized denomination as requested
by such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
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ARTICLE XII
SINKING FUNDS
SECTION 12.01. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series, except as otherwise specified as
contemplated by Section 3.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "MANDATORY SINKING
FUND PAYMENT," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "OPTIONAL
SINKING FUND PAYMENT." If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 12.02. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 12.02. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Securities of a series (other than any
Securities previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 12.03. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officer's
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 12.02 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 11.03 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 11.04. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 11.06 and 11.07.
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ARTICLE XIII
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 13.01. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance.
Unless pursuant to Section 3.01 provision is made for the
inapplicability of either or both of (a) Defeasance of the Securities of a
series under Section 13.02 or (b) Covenant Defeasance of the Securities of a
series under Section 13.03, then the provisions of such Section or Sections, as
the case may be, together with the other provisions of this Article, shall be
applicable to the Securities of such series, and the Company may at its option
by Board Resolution, at any time, with respect to the Securities of such series,
elect to have either Section 13.02 (unless inapplicable) or Section 13.03
(unless inapplicable) be applied to the Outstanding Securities of such series
upon compliance with the applicable conditions set forth below in this Article.
SECTION 13.02. Defeasance and Discharge.
Upon the Company's exercise of the option provided in Section 13.01 to
defease the Outstanding Securities of a particular series, the Company shall be
discharged from its obligations with respect to the Outstanding Securities of
such series on the date the applicable conditions set forth in Section 13.04 are
satisfied (hereinafter, "DEFEASANCE"). Defeasance shall mean that the Company
shall be deemed to have paid and discharged the entire indebtedness represented
by the Outstanding Securities of such series and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same); provided, however, that the
following rights, obligations, powers, trusts, duties and immunities shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of Outstanding Securities of such series to receive, solely from the
trust fund provided for in Section 13.04, payments in respect of the principal
of (and premium, if any) and interest on such Securities when such payments are
due, (B) the Company's obligations with respect to such Securities under
Sections 3.04, 3.05, 3.06, 10.02 and 10.07, (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (D) this Article. Subject to
compliance with this Article, the Company may exercise its option with respect
to Defeasance under this Section 13.02 notwithstanding the prior exercise of its
option with respect to Covenant Defeasance under Section 14.03 in regard to the
Securities of such series.
SECTION 13.03. Covenant Defeasance.
Upon the Company's exercise of the option provided in Section 13.01 to
obtain a Covenant Defeasance with respect to the Outstanding Securities of a
particular series, the Company shall be released from its obligations under this
Indenture (except its obligations under Sections 3.04, 3.05, 3.06, 5.06, 5.09,
6.10, 10.01, 10.02, and 10.07) with respect to the Outstanding Securities of
such series on and after the date the applicable conditions set
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forth in Section 13.04 are satisfied (hereinafter, "COVENANT DEFEASANCE").
Covenant Defeasance shall mean that, with respect to the Outstanding Securities
of such series, the Company may omit to comply with and shall have no liability
in respect of any term, condition or limitation set forth in this Indenture
(except its obligations under Sections 3.04, 3.05, 3.06, 5.06, 5.09, 6.10,
10.01, 10.02, and 10.07), whether directly or indirectly by reason of any
reference elsewhere herein or by reason of any reference to any other provision
herein or in any other document, and such omission to comply shall not
constitute an Event of Default under Section 5.01(3) with respect to Outstanding
Securities of such series, and the remainder of this Indenture and of the
Securities of such series shall be unaffected thereby.
SECTION 13.04. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to Defeasance under Section 13.02
and Covenant Defeasance under Section 13.03 with respect to the Outstanding
Securities of a particular series:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 6.09 who shall agree to comply with the
provisions of this Article applicable to it), under the terms of an
irrevocable trust agreement in form and substance reasonably
satisfactory to such Trustee, as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of such Securities,
(A) Dollars in an amount, or (B) U.S. Government Obligations which
through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than the
due date of any payment, money in an amount, or (C) a combination
thereof, in each case sufficient, after payment of all federal, state
and local taxes or other charges or assessments in respect thereof
payable by the Trustee, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or other qualifying trustee) to pay and
discharge, (i) the principal of (and premium, if any, on) and each
installment of principal of (and premium, if any) and interest on the
Outstanding Securities of such series on the Stated Maturity of such
principal or installment of principal or interest and (ii) any
mandatory sinking fund payments or analogous payments applicable to the
Outstanding Securities of such series on the day on which such payments
are due and payable in accordance with the terms of this Indenture and
of such Securities.
(2) No Default or Event of Default with respect to the
Securities of such series shall have occurred and be continuing on the
date of such deposit or shall occur as a result of such deposit, and no
Default or Event of Default under clause (4) or (5) of Section 5.01
shall occur and be continuing, at any time during the period ending on
the 91st day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until the expiration of
such period).
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(3) Such deposit, Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under, any
other agreement or instrument to which the Company is a party or by
which it is bound.
(4) Such Defeasance or Covenant Defeasance shall not cause any
Securities of such series then listed on any national securities
exchange registered under the Exchange Act to be delisted.
(5) In the case of an election with respect to Section 13.02,
the Company shall have delivered to the Trustee either (A) a ruling
directed to the Trustee received from the Internal Revenue Service to
the effect that the Holders of the Outstanding Securities of such
series will not recognize income, gain or loss for federal income tax
purposes as a result of such Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Defeasance had not occurred
or (B) an Opinion of Counsel, based on such ruling or on a change in
the applicable federal income tax law since the date of this Indenture,
in either case to the effect that, and based thereon such opinion shall
confirm that, the Holders of the Outstanding Securities of such series
will not recognize income, gain or loss for federal income tax purposes
as a result of such Defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the same times as
would have been the case if such Defeasance had not occurred.
(6) In the case of an election with respect to Section 13.03,
the Company shall have delivered to the Trustee an Opinion of Counsel
or a ruling directed to the Trustee received from the Internal Revenue
Service to the effect that the Holders of the Outstanding Securities of
such series will not recognize income, gain or loss for federal income
tax purposes as a result of such Covenant Defeasance and will be
subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such Covenant
Defeasance had not occurred.
(7) Such Defeasance or Covenant Defeasance shall be effected
in compliance with any additional terms, conditions or limitations
which may be imposed on the Company in connection therewith pursuant to
Section 3.01.
(8) The Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the Defeasance
under Section 13.02 or the Covenant Defeasance under Section 13.03 (as
the case may be) have been complied with.
SECTION 13.05. Deposited Money and Government Obligations To Be Held In
Trust.
Subject to the provisions of the last paragraph of Section 10.07, all
money and Government Obligations (including the proceeds thereof) deposited with
the Trustee (or other qualifying trustee--collectively for purposes of this
Section 13.05, the "Trustee") pursuant to Section 13.04 in respect of the
Outstanding Securities of a particular series shall be held in trust and applied
by the Trustee, in accordance with the provisions of such Securities and this
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Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities of all sums due and to become due
thereon in respect of principal (and premium, if any) and interest, but such
money need not be segregated from other funds except to the extent required by
law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 13.04 or the principal and interest received in respect
thereof, other than any such tax, fee or other charge which by law is for the
account of the Holders of the Outstanding Securities of such series.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver to pay to the Company from time to time upon company Request any
money or Government Obligations held by it as provided in Section 13.04 which,
in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited for
the purpose for which such money or Government Obligations were deposited.
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ARTICLE XIV
SUBORDINATION OF DEBT SECURITIES
SECTION 14.01. Agreement to Subordinate.
The Company covenants and agrees, and each Holder of Securities issued
hereunder, by such Holder's acceptance thereof, likewise covenants and agrees,
that all Securities shall be issued subject to the provisions of this Article
XIV, and each Holder of a 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 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 XIV irrespective of any amendment, modification or
waiver of any term of such Senior Indebtedness.
No provision of this Article XIV shall prevent the occurrence of any
Default or Event of Default hereunder.
SECTION 14.02. 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 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 14.02, 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.
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SECTION 14.03. 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 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, which the Holders or the
Trustee would be entitled to receive from the Company, except for the provisions
of this Article XIV, 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 Holders 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 Holders or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, prohibited by the foregoing, shall be received by the
Trustee 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, as 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 XIV, 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 XIV with respect
to the 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
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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 VIII of this Indenture shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section 14.03 if such
other corporation shall, as a part of such consolidation, merger, conveyance or
transfer, comply with the conditions stated in Article VIII of this Indenture.
Nothing in Section 14.02 or in this Section 14.03 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 6.07 of this Indenture.
SECTION 14.04. Subrogation.
Subject to the payment in full of all Senior Indebtedness of the
Company, the rights of the Holders 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
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 Holders or the Trustee would be
entitled except for the provisions of this Article XIV, and no payment pursuant
to the provisions of this Article XIV to or for the benefit of the holders of
such Senior Indebtedness by Holders or the Trustee, shall, as between the
Company, its creditors other than holders of Senior Indebtedness of the Company,
and the Holders of the 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 XIV are and are intended solely for the purposes of defining the
relative rights of the Holders of the Securities, on the one hand, and the
holders of such Senior Indebtedness on the other hand.
Nothing contained in this Article XIV or elsewhere in this Indenture or
in the 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 Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Securities the principal of (and
premium, if any) and interest on the Securities as and when the same shall
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the Holders of the 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
Security from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this Article
XIV 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 XIV, the Trustee, subject to the provisions of Section 6.01 of
this Indenture, and the Holders 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
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trustee, agent or other Person making such payment or distribution, delivered to
the Trustee or to the Holders, 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 XIV.
SECTION 14.05. Trustee to Effectuate Subordination.
Each Holder by such Holder's acceptance of a Security authorizes and
directs the Trustee on such Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article XIV and appoints the Trustee such Holder's attorney-in-fact for any and
all such purposes.
SECTION 14.06. 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 Securities
pursuant to the provisions of this Article XIV. Notwithstanding the provisions
of this Article XIV 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
Securities pursuant to the provisions of this Article XIV, 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 6.01 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 14.06 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 Security), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
monies 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 6.01 of this
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 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 XIV, 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 XIV, and, if such
-66-
<PAGE>
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 14.07. 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 XIV 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 XIV, 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 6.01 of this Indenture, the Trustee
shall not be liable to any holder of such Senior Indebtedness if it shall pay
over or deliver to Holders, 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 XIV or otherwise.
SECTION 14.08. 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 Holders, without
incurring responsibility to the Holders and without impairing or releasing the
subordination provided in this Article XIV or the obligations hereunder of the
Holders of the 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.
-67-
<PAGE>
ARTICLE XV
MISCELLANEOUS
SECTION 15.01. Miscellaneous.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
WPS RESOURCES CORPORATION
By: _________________________________
Name:
Title:
Attest:
____________________________________
Name:
Title:
__________________________________
as Trustee
By: __________________________________
Name:
Title:
Attest:
____________________________________
Name:
Title:
-68-
EXHIBIT 5
FOLEY & LARDNER
ATTORNEYS AT LAW
CHICAGO FIRSTAR CENTER SACRAMENTO
DENVER 777 EAST WISCONSIN AVENUE SAN DIEGO
JACKSONVILLE MILWAUKEE, WISCONSIN 53202-5367 SAN FRANCISCO
LOS ANGELES TELEPHONE (414) 271-2400 TALLAHASSEE
MADISON FACSIMILE (414) 297-4900 TAMPA
MILWAUKEE WASHINGTON, D.C.
ORLANDO WEST PALM BEACH
WRITER'S DIRECT LINE
414-297-5672
EMAIL ADDRESS CLIENT/MATTER NUMBER
[email protected] 086120-0642
October 6, 1999
WPS Resources Corporation
700 North Adams Street
Green Bay, WI 54307-9008
Dear Ladies and Gentlemen:
We have acted as counsel for WPS Resources Corporation, a Wisconsin
corporation (the "Company"), in connection with the proposed issuance and sale
from time to time pursuant to Rule 415 under the Securities Act of 1933 (the
"Securities Act") of up to $400,000,000 of senior or subordinated debt
securities of the Company (the "Debt Securities"), to be issued under an
Indenture dated as of October 1, 1999 (the "Senior Indenture"), between the
Company and Firstar Bank, National Association (the "Senior Trustee") or an
Indenture (the "Subordinated Indenture") to be entered into between the Company
and a Trustee (the "Subordinated Trustee"), and/or common stock (the "Common
Stock") of the Company with attached common stock purchase rights (the
"Rights"). The Debt Securities and Common Stock with attached Rights are
collectively referred to herein as the "Securities.
We have examined the Restated Articles of Incorporation of the Company;
the By-laws of the Company, the Senior Indenture and the form of Subordinated
Indenture filed as Exhibits to the Registration Statement. In addition, we are
familiar with the proceedings by which such instruments and the transactions
contemplated thereby were authorized by the Company.
Based upon and subject to the foregoing and assuming that (i) the
Registration Statement and any amendments thereto (including post-effective
amendments) will have become effective and comply with all applicable laws; (ii)
the Registration Statement will be effective and will comply with all applicable
laws at the time the Securities are offered or issued as contemplated by the
Registration Statement; (iii) a Prospectus Supplement, Pricing Supplement or
term sheet will have been prepared and filed with the Securities and Exchange
Commission describing the Securities offered thereby and will comply with all
applicable laws; (iv) all Securities will be issued and sold in compliance with
applicable federal and state securities laws and in the manner stated in the
Registration Statement and the appropriate Prospectus Supplement; and (v) a
definitive purchase, underwriting, agency or similar agreement with respect to
any Securities offered or issued will have been duly authorized and validly
executed and delivered by the Company and the other parties thereto, we are of
the opinion that:
1. the Company has been duly incorporated and is a validly existing
corporation under the laws of the State of Wisconsin.
<PAGE>
2. with respect to Debt Securities to be issued under either the Senior
Indenture or Subordinated Indenture, when (A) the Senior Trustee or Subordinated
Trustee, as applicable, is qualified to act as Senior Trustee or Subordinated
Trustee, as applicable, under the Senior Indenture or Subordinated Indenture, as
applicable, (B) the Senior Trustee or Subordinated Trustee, as applicable, has
duly executed and delivered the Senior Indenture or Subordinated Indenture, as
applicable, (C) the Senior Indenture or Subordinated Indenture, as applicable,
has been duly authorized and validly executed and delivered by the Company to
the Senior Trustee or Subordinated Trustee, as applicable, (D) the Senior
Indenture or Subordinated Indenture, as applicable, has been duly qualified
under the Trust Indenture Act of 1939, as amended, (E) the Board of Directors of
the Company or a duly constituted and acting committee thereof (such Board of
Directors or committee being hereinafter referred to as the "Board") has taken
all necessary corporate action to approve the issuance and terms of such Debt
Securities, the terms of the offering thereof and related matters, and (F) such
Debt Securities have been duly executed, authenticated, issued and delivered in
accordance with the provisions of the Senior Indenture or Subordinated
Indenture, as applicable, and the applicable definitive purchase, underwriting
or similar agreement approved by the Board upon payment of the consideration
therefor provided for therein, such Debt Securities will be validly issued and
will constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms (subject to applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
other similar laws in effect and subject to general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law);
3. with respect to shares of Common Stock, when both (A) the Board has
taken all necessary corporate action to approve the issuance of and the terms of
the offering of the shares of Common Stock and related matters and (B)
certificates representing the shares of Common Stock have been duly executed,
countersigned, registered and delivered in accordance with the applicable
definitive purchase, underwriting or similar agreement approved by the Board
upon payment of the consideration therefor (not less than the par value of the
Common Stock) provided for therein, then the shares of Common Stock will be
validly issued, fully paid and nonassessable except with respect to debts owing
to employees of the Company for services performed for the Company as provided
in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law and judicial
interpretation thereof; and
4. The Rights attached to the shares of Common Stock when issued
pursuant to the terms of the Rights Agreement dated December 12, 1996 between
the Company and Firstar Trust Company will be validly issued.
We understand that we may be referred to, as counsel who have passed
upon the validity of the Debt Securities or the issuance of the Common Stock, on
behalf of the Company, in the Prospectus forming a part of the Registration
Statement on Form S-3 relating to the Securities and one or more prospectus
supplements filed with the Securities and Exchange Commission pursuant to the
Securities Act and one or more pricing supplements filed with the Securities and
Exchange Commission pursuant to the Securities Act, and we hereby consent to
such use of our name in said Registration Statement and to the use of this
opinion for filing with said Registration Statement as Exhibit (5) thereto.
Very truly yours,
/s/ Foley & Lardner
Foley & Lardner
<TABLE>
Exhibit 12
WPS Resources Corporation
Ratio of Earnings to Fixed Charges and
Ratio of Earnings to Fixed Charges and Preferred Dividends
<CAPTION>
1999 1998
1998 1997 1996 1995 1994 6 months 6 months
---- ---- ---- ---- ---- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
EARNINGS
Net income 46,631 55,809 52,885 60,634 58,122 32,793 28,417
Federal and State income taxes 23,445 31,106 27,216 34,023 32,602 17,502 15,019
------- ------- ------- ------- ------- ------ ------
Net pretax income 70,076 86,915 80,101 94,657 90,724 50,295 43,436
Fixed charges 35,448 37,975 36,400 36,270 35,755 18,052 17,943
Subtract preference dividend
requirement (5,232) (5,233) (5,235) (5,235) (5,235) (2,599) (2,618)
------- ------- ------- ------- ------- ------ ------
Total earnings as defined 100,292 119,657 111,266 125,692 121,244 65,748 58,761
FIXED CHARGES
Interest on long-term debt,
incl. related amort 23,987 26,273 25,494 26,839 27,404 12,741 12,722
Other interest 4,827 4,910 3,922 2,677 1,856 1,981 1,953
Interest factor applicable to rentals 1,402 1,559 1,749 1,519 1,260 731 650
------- ------- ------- ------- ------- ------ ------
Fixed charges before preferred
dividend requirement 30,216 32,742 31,165 31,035 30,520 15,453 15,325
Ratio of earnings to fixed charges
before preferred dividend requirement 3.32 3.65 3.57 4.05 3.97 4.25 3.83
Preferred Dividends (gross-up)
-- see below 5,232 5,233 5,235 5,235 5,235 2,599 2,618
Total fixed charges including
Preferred Dividend 35,448 37,975 36,400 36,270 35,755 18,052 17,943
Ratio -- including Preferred Dividend 2.83 3.15 3.06 3.47 3.39 3.64 3.27
_______________________________________________
Preferred Dividends Calculation:
Preferred Dividends 3,132 3,133 3,134 3,134 3,134 1,556 1,567
Tax Rate 40.135% 40.135% 40.135% 40.135% 40.135% 40.135% 40.135%
------ ------ ------ ------ ------ ------ ------
Preferred Dividends (grossed up) 5,232 5,233 5,235 5,235 5,235 2,599 2,618
</TABLE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 28, 1999
incorporated by reference in WPS Resources Corporation's Form 10-K for the year
ended December 31, 1998 and to all references of our firm included in this
registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
October 6, 1999
Milwaukee, Wisconsin
Exhibit 24(a)
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That I, A. Dean Arganbright , hereby constitute and appoint Larry L.
Weyers, Ralph G. Baeten and Barth J. Wolf, and each of them individually, my
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for me and in my name, place and stead, in any and all
capacities, to sign my name as a director of WPS Resources Corporation (this
"Corporation") to the Registration Statement on Form S-3, and any amendments
(including post-effective amendments) or supplements thereto, relating to public
offerings of debt securities or Common Stock to be issued by this Corporation,
and to file said Registration Statement, and any amendment (including any
post-effective amendment) or supplement thereto, with the Securities and
Exchange Commission in connection with the registration of such debt securities
and Common Stock under the Securities Act of 1933, as amended.
I hereby ratify and confirm all that said attorneys-in-fact and agents,
or each of them, have done or shall lawfully do by virtue of this Power of
Attorney.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 9th day
of September, 1999.
/s/ A. Dean Arganbright
A. Dean Arganbright
<PAGE>
Exhibit 24(a)
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That I, Michael S. Ariens , hereby constitute and appoint Larry L.
Weyers, Ralph G. Baeten and Barth J. Wolf, and each of them individually, my
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for me and in my name, place and stead, in any and all
capacities, to sign my name as a director of WPS Resources Corporation (this
"Corporation") to the Registration Statement on Form S-3, and any amendments
(including post-effective amendments) or supplements thereto, relating to public
offerings of debt securities or Common Stock to be issued by this Corporation,
and to file said Registration Statement, and any amendment (including any
post-effective amendment) or supplement thereto, with the Securities and
Exchange Commission in connection with the registration of such debt securities
and Common Stock under the Securities Act of 1933, as amended.
I hereby ratify and confirm all that said attorneys-in-fact and agents,
or each of them, have done or shall lawfully do by virtue of this Power of
Attorney.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 9th day
of September, 1999.
/s/ Michael S. Ariens
Michael S. Ariens
<PAGE>
Exhibit 24(a)
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That I, Richard A. Bemis , hereby constitute and appoint Larry L.
Weyers, Ralph G. Baeten and Barth J. Wolf, and each of them individually, my
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for me and in my name, place and stead, in any and all
capacities, to sign my name as a director of WPS Resources Corporation (this
"Corporation") to the Registration Statement on Form S-3, and any amendments
(including post-effective amendments) or supplements thereto, relating to public
offerings of debt securities or Common Stock to be issued by this Corporation,
and to file said Registration Statement, and any amendment (including any
post-effective amendment) or supplement thereto, with the Securities and
Exchange Commission in connection with the registration of such debt securities
and Common Stock under the Securities Act of 1933, as amended.
I hereby ratify and confirm all that said attorneys-in-fact and agents,
or each of them, have done or shall lawfully do by virtue of this Power of
Attorney.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 9th day
of September, 1999.
/s/ Richard A. Bemis
Richard A. Bemis
<PAGE>
Exhibit 24(a)
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That I, Daniel A. Bollom , hereby constitute and appoint Larry L.
Weyers, Ralph G. Baeten and Barth J. Wolf, and each of them individually, my
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for me and in my name, place and stead, in any and all
capacities, to sign my name as a director of WPS Resources Corporation (this
"Corporation") to the Registration Statement on Form S-3, and any amendments
(including post-effective amendments) or supplements thereto, relating to public
offerings of debt securities or Common Stock to be issued by this Corporation,
and to file said Registration Statement, and any amendment (including any
post-effective amendment) or supplement thereto, with the Securities and
Exchange Commission in connection with the registration of such debt securities
and Common Stock under the Securities Act of 1933, as amended.
I hereby ratify and confirm all that said attorneys-in-fact and agents,
or each of them, have done or shall lawfully do by virtue of this Power of
Attorney.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 9th day
of September, 1999.
/s/ Daniel A. Bollom
Daniel A. Bollom
<PAGE>
Exhibit 24(a)
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That I, Clarence R. Fisher , hereby constitute and appoint Larry L.
Weyers, Ralph G. Baeten and Barth J. Wolf, and each of them individually, my
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for me and in my name, place and stead, in any and all
capacities, to sign my name as a director of WPS Resources Corporation (this
"Corporation") to the Registration Statement on Form S-3, and any amendments
(including post-effective amendments) or supplements thereto, relating to public
offerings of debt securities or Common Stock to be issued by this Corporation,
and to file said Registration Statement, and any amendment (including any
post-effective amendment) or supplement thereto, with the Securities and
Exchange Commission in connection with the registration of such debt securities
and Common Stock under the Securities Act of 1933, as amended.
I hereby ratify and confirm all that said attorneys-in-fact and agents,
or each of them, have done or shall lawfully do by virtue of this Power of
Attorney.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 9th day
of September, 1999.
/s/ Clarence R. Fisher
Clarence R. Fisher
<PAGE>
Exhibit 24(a)
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That I, Robert C. Gallagher , hereby constitute and appoint Larry L.
Weyers, Ralph G. Baeten and Barth J. Wolf, and each of them individually, my
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for me and in my name, place and stead, in any and all
capacities, to sign my name as a director of WPS Resources Corporation (this
"Corporation") to the Registration Statement on Form S-3, and any amendments
(including post-effective amendments) or supplements thereto, relating to public
offerings of debt securities or Common Stock to be issued by this Corporation,
and to file said Registration Statement, and any amendment (including any
post-effective amendment) or supplement thereto, with the Securities and
Exchange Commission in connection with the registration of such debt securities
and Common Stock under the Securities Act of 1933, as amended.
I hereby ratify and confirm all that said attorneys-in-fact and agents,
or each of them, have done or shall lawfully do by virtue of this Power of
Attorney.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 9th day
of September, 1999.
/s/ Robert C. Gallagher
Robert C. Gallagher
<PAGE>
Exhibit 24(a)
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That I, Kathryn M. Hasselblad-Pascale, hereby constitute and appoint
Larry L. Weyers, Ralph G. Baeten and Barth J. Wolf, and each of them
individually, my true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for me and in my name, place and stead, in any
and all capacities, to sign my name as a director of WPS Resources Corporation
(this "Corporation") to the Registration Statement on Form S-3, and any
amendments (including post-effective amendments) or supplements thereto,
relating to public offerings of debt securities or Common Stock to be issued by
this Corporation, and to file said Registration Statement, and any amendment
(including any post-effective amendment) or supplement thereto, with the
Securities and Exchange Commission in connection with the registration of such
debt securities and Common Stock under the Securities Act of 1933, as amended.
I hereby ratify and confirm all that said attorneys-in-fact and agents,
or each of them, have done or shall lawfully do by virtue of this Power of
Attorney.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 9th day
of September, 1999.
/s/ Kathryn M. Hasselblad-Pascale
Kathryn M. Hasselblad-Pascale
<PAGE>
Exhibit 24(a)
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That I, James L. Kemerling , hereby constitute and appoint Larry L.
Weyers, Ralph G. Baeten and Barth J. Wolf, and each of them individually, my
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for me and in my name, place and stead, in any and all
capacities, to sign my name as a director of WPS Resources Corporation (this
"Corporation") to the Registration Statement on Form S-3, and any amendments
(including post-effective amendments) or supplements thereto, relating to public
offerings of debt securities or Common Stock to be issued by this Corporation,
and to file said Registration Statement, and any amendment (including any
post-effective amendment) or supplement thereto, with the Securities and
Exchange Commission in connection with the registration of such debt securities
and Common Stock under the Securities Act of 1933, as amended.
I hereby ratify and confirm all that said attorneys-in-fact and agents,
or each of them, have done or shall lawfully do by virtue of this Power of
Attorney.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 9th day
of September, 1999.
/s/ James L. Kemerling
James L. Kemerling
<PAGE>
Exhibit 24(a)
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That I, Larry L. Weyers , hereby constitute and appoint Larry L.
Weyers, Ralph G. Baeten and Barth J. Wolf, and each of them individually, my
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for me and in my name, place and stead, in any and all
capacities, to sign my name as a director of WPS Resources Corporation (this
"Corporation") to the Registration Statement on Form S-3, and any amendments
(including post-effective amendments) or supplements thereto, relating to public
offerings of debt securities or Common Stock to be issued by this Corporation,
and to file said Registration Statement, and any amendment (including any
post-effective amendment) or supplement thereto, with the Securities and
Exchange Commission in connection with the registration of such debt securities
and Common Stock under the Securities Act of 1933, as amended.
I hereby ratify and confirm all that said attorneys-in-fact and agents,
or each of them, have done or shall lawfully do by virtue of this Power of
Attorney.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 9th day
of September, 1999.
/s/ Larry L. Weyers
Larry L. Weyers
EXHIBIT 25(a)
Securities Act of 1933 File No.______________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
--------------------------------------------------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
PURSUANT TO SECTION 305(b) (2) / X /
--------------------------------------------------
FIRSTAR BANK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
A National Banking Association 31-0841368
-----------
(IRS Employer Identification No.)
425 Walnut Street
Cincinnati, Ohio 45202
------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
Robert T. Jones
Vice President and Trust Officer
Firstar Bank, National Association
425 Walnut Street
Cincinnati, Ohio 45202
(513) 632-4427
(Name, address, and telephone number of agent for services)
---------------------------------------------------------
WPS Resources Corporation
-------------------------
(Exact name of obligor as specified in its charter)
WI 39-1775292
---------------------- -------------------------------
(State of Incorporation) (IRS Employer Identification No.)
700 North Adams Street, Green Bay, WI 54301
---------------------------------------- --------
(Address of principal executive offices) (Zip Code)
Indenture Senior Debt Securities Dated as of October 1, 1999
------------------------------------------------------------
(Title of the Indenture securities)
<PAGE>
1. General Information. Furnish the following information as Trustee --
-------------------
(a) Name and address of each examining or supervising authority to which
it is subject.
Comptroller of the Currency, Washington, D.C.
Federal Reserve Bank of Cleveland, Ohio
Federal Deposit Insurance Corporation, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The Trustee is authorized to exercise corporate trust powers.
2. Affiliations with obligor. If the obligor is an affiliate of the trustee,
-------------------------- describe each such affiliation.
The obligor is not an affiliate of the Trustee (including its
parent and any affiliates).
3.-15. N/A
16. List of Exhibits. List below all exhibits filed as part of this statement
---------------- of eligibility.
1. Office of the Comptroller of the Currency Amendment Letter
2. A copy of the Articles of Association of Firstar Bank, National
Association, as now in effect
3. A copy of the certificate of authority of The First National Bank of
Cincinnati (now Firstar Bank, National Association) to commence
business dated September 1, 1922.
4. A copy of the authorization of The First National Bank of Cincinnati
(now Firstar Bank, National Association) to exercise corporate trust
powers.
5. A copy of existing By-Laws to Star Bank, National Association (now
Firstar Bank, National Association)
6. The consent of the Trustee required by section 321 (b) of the Trust
Indenture Act of 1939.
7. A copy of the latest report of condition of Firstar Bank, National
Association, published pursuant to law or the requirements of its
supervising or examining authority.
2
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Firstar Bank, National Association, a national banking association
organized and existing under the laws of the United States of America, has duly
caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Cincinnati and State
of Ohio on the 27th day of September, 1999.
FIRSTAR BANK, NATIONAL ASSOCIATION
By: /S/ Robert T. Jones
Robert T. Jones
Vice President and Trust Officer
3
<PAGE>
EXHIBIT 1
---------
Comptroller of the Currency
Administrator of National Banks
Central District Office
One Financial Place, Suite 2700
440 South LaSalle Street
Chicago, Illinois 60605
February 11, 1999
Mr. Richard J. Hidy
Vise president and
Deputy General Counsel
StarBanc Corporation
425 Walnut Street
P.O. Box 1038, ML 9140
Cincinnati, OH 45201-1038
Dear Mr. Hidy:
The Office of the Comptroller of the Currency has received your letter
concerning the title change and the appropriate amendment to the bank's articles
of association. The Office has recorded that as of February 12, 1999, the title
of Star Bank, National Association, Cincinnati, Ohio, Charter No. 24, was
changed to "Firstar Bank, National Association."
As a result of the Garn-St. Germain Depository Institutions Act of 1982, the OCC
is no longer responsible for the approval of national bank name changes nor does
it maintain official records on the use of alternate titles. The use of other
titles or the retention of the rights to any previously used title is the
responsibility of the bank's board of directors. Legal counsel should be
consulted to determine whether or not the new title, or any previously used
title, could be challenged by competing institutions under the provisions of
federal and state law.
Sincerely,
/S/ David J. Rogers
National Bank Examiner
4
<PAGE>
EXHIBIT 2
---------
FIRSTAR BANK, NATIONAL ASSOCIATION
----------------------------------
CHARTER NO. 24
--------------
ARTICLES OF ASSOCIATION
-----------------------
FIRST: The title of this Association shall be "Firstar Bank, National
Association".
SECOND: The main office of the Association shall be in the city of Cincinnati,
County of Hamilton, State of Ohio. The general business of the Association shall
be conducted at its main office and its branches.
THIRD: The Board of Directors of this Association shall consist of not less than
five (5) nor more than twenty-five (25) shareholders, the exact number of
Directors within such minimum and maximum limits to be fixed and determined from
time to time by resolution of a majority of the full Board of Directors or by
resolution of the shareholders at any annual or special meeting thereof. Unless
otherwise provided by the laws of the United States, any vacancy in the Board of
Directors for any reason, including an increase in the number thereof, may be
filled by action of the Board of Directors.
FOURTH: The annual meeting of the shareholders for the election of Directors and
the transaction of whatever other business may be brought before said meeting
shall be held at the main office or such other place as the Board of Directors
may designate, on the day of each year specified thereof by the Bylaws, but of
no election is held on that day, it may be held on any subsequent day according
to the provisions of law; and all elections shall be held according to the
provisions of law; and all elections shall be held according to such lawful
regulations as may be prescribed by the Board of Directors.
FIFTH: The authorized amount of capital stock of this Association shall be
3,640,000 shares of common stock of the par value of five dollars ($5.00) each,
but said capital stack may be increased or decreased from time to time, in
accordance with the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the Association shall
have any pre-emptive or preferential right of subscription to any shares of any
class of stock of the Association, whether now or hereafter authorized, or to
any obligations convertible into stock of the Association issued or sold, nor
any right of subscription to any thereof other than such, if any, as the Board
of Directors, in its discretion, may from time to time determine and at such
price as the Board of Directors may from time to time fix.
The Association, at any time and from time to time, may authorize and issue debt
obligations, whether or not subordinated, without the approval of the
shareholders.
5
<PAGE>
SIXTH: The Board of Directors shall appoint one of its members President of this
Association, who shall be Chairman of the Board, unless the Board appoints
another Director to be the Chairman. The Board of Directors shall have the power
to appoint one or more Vice Presidents; and to appoint a Cashier and such other
officers and employees as may be required to transact the business of this
Association. The Board of Directors shall have the power to define the duties of
the officers and employees of the Association; to fix the salaries to be paid to
them; to dismiss them; to require bonds from them and to fix the penalty
thereof; to regulate the manner in which any increase of the capital of the
Association shall be made; to manage and administer the business and affairs of
the Association; to make all bylaws that it may be lawful for them to make and
generally to do and perform all acts that it may be legal for a Board of
Directors to do and perform.
SEVENTH: The Board of Directors, without need for approval of shareholders,
shall have the power to change the location of the main office of this
Association, subject to such limitations as from time to time may be provided by
law; and shall have the power to establish or change the location of any branch
or branches of the Association to any other location, without the approval of
the shareholders, but subject to the approval of the Comptroller of the
Currency.
EIGHTH: The corporate existence of this Association shall continue until
terminated in accordance with the laws of the United States.
NINTH: The Board of Directors of this Association, the Chairman of the Board,
the President, or any three of more shareholders owning, in the aggregate, not
less than twenty-five percent of the stock of this Association, may call a
special meeting of shareholders at any time. Unless otherwise provided by the
laws of the United States, a notice of the time, place, and purpose of every
annual and special meeting of the shareholders shall be given by first-class
mail, postage prepaid, mailed at least ten days prior to the date of such
meeting to each shareholder of record at his address as shown upon the books of
this Association.
TENTH: Any person, his heirs, executors, or administrators, may be indemnified
or reimbursed by the Association for reasonable expenses actually incurred in
connection with any action, suit, or proceeding, civil or criminal, to which he
or they shall be made a party by reason of his being or having been a director,
officer, or employee of the Association or of any firm, corporation, or
organization which he served in any such capacity at the request of the
Association. Provided, however, that no person shall be so indemnified or
reimbursed in relation to any matter in such action, suit, or proceeding as to
which he shall finally be adjudged to have been guilty of or liable for gross
negligence, willful misconduct or criminal acts in the performance of his duties
to the Association. And, provided further, that no person shall be so
indemnified or reimbursed in relation to any matter in such action, suit, or
proceeding which has been made the subject of a compromise settlement except
with the approval of a court of competent jurisdiction, or the holders of record
of a majority of the outstanding shares of the Association, or the Board of
Directors, acting by vote of Directors not parties to the same or substantially
the same action, suit or proceeding, constituting a majority of the whole number
of Directors. And, provided further, that no director, officer or employee shall
be so indemnified or reimbursed for expenses, penalties or other payments
incurred in an administrative proceeding or action instituted by an appropriate
bank regulatory agency where said proceeding or action results in a final order
6
<PAGE>
TENTH (continued) assessing civil money penalties or requiring affirmative
action by an individual or individuals in the form of payments to this
Association. The foregoing right of indemnification shall not be exclusive of
other rights to which such person, his heirs, executors, or administrators, may
be entitled as a matter of law. The Association may, upon the affirmative vote
of a majority of its Board of Directors, purchase insurance for the purpose of
indemnifying its directors, officers and other employees to the extent that such
indemnification is allowed in the preceding paragraph. Such insurance may, but
need not, be for the benefit of all directors, officers, or employees.
ELEVENTH: These Articles of Association may be amended at any regular or special
meeting of the shareholders by the affirmative vote of the holders of a majority
of the stock of this Association, unless the vote of the holders of a greater
amount of stock is required by law and in that case by the vote of the holders
of such greater amount.
7
<PAGE>
EXHIBIT 3
---------
COPY OF THE CERTIFICATE OF AUTHORITY OF THE TRUSTEE TO COMMENCE BUSINESS:
NO. 24
E Pluribus Unum
TREASURY DEPARTMENT
Office of Comptroller of the Currency
Washington, D.C., September 1, 1992
WHEREAS, the Act of Congress of the United States, entitled, "An Act
to amend section 5136, Revised Statutes of the United States, relating to
corporate powers of associations, so as to provide succession thereof for a
period of ninety-nine years or until dissolved, and to apply said section as so
amended to all national banking association", approved by the President on July
1, 1922, provided that all national banking associations organized and operating
under any law of the United States on July 1, 1922 should have succession until
ninety-nine years from that date, unless such association should be sooner
dissolved by the act of its shareholders owning two-thirds of its stock, or
unless its franchise should become forfeited by reason of violation of law, or
unless it should be terminated by an Act of Congress hereinafter enacted;
NOW THEREFORE, I, D. R. Crissinger Comptroller of the Currency, do
hereby certify that The First National Bank of Cincinnati and State of Ohio ,
was organized and operating under the laws of the United States on July 1, 1922,
and that its corporate existence was extended for the period of ninety-nine
years from that date in accordance with and subject to the condition in the Act
of Congress hereinbefore recited.
(SEAL) IN TESTIMONY WHEREOF, witness my hand
& seal of office this first day of September, 1922
(Signed) D.R. Crissinger
--------------------
Comptroller of the Currency
8
<PAGE>
EXHIBIT 4
---------
THE AUTHORIZATION OF THE TRUSTEE TO EXERCISE CORPORATE TRUST POWERS:
FEDERAL RESERVE BOARD
Washington, D.C.
October 9, 1919
Pursuant to authority vested in the Federal Reserve Board by the Act of
Congress approved December 23, 1913, known as the Federal Reserve Act, as
amended by the Act of September 26, 1918, the
FIRST NATIONAL BANK OF CINCINNATI
has been granted the right to act, when not in contravention of State or local
law, as TRUSTEE, EXECUTOR, ADMINISTRATOR, REGISTRAR OF STOCKS AND BONDS,
GUARDIAN OF ESTATES, ASSIGNEE, RECEIVER OR IN ANY OTHER FIDUCIARY CAPACITY IN
WHICH STATE BANKS, TRUST COMPANIES OR OTHER CORPORATIONS WHICH COME INTO
COMPETITION WITH NATIONAL BANKS ARE PERMITTED TO ACT UNDER THE LAWS OF THE STATE
OF OHIO. The exercise of such rights shall be subject to regulations prescribed
by the Federal Reserve Board.
Federal Reserve Board,
By W.P.G. Harding
Governor.
ATTEST:
W.T. Chapman
Secretary.
STATE OF OHIO
DEPARTMENT OF BANKS AND BANKING
Certificate of Authority No. 17
NATIONAL BANKS
I, Philip C. Berg, Superintendent of Banks, do hereby certify that the
First National Bank of Cincinnati, Hamilton County, Ohio has complied with all
the requirements provided by law and is authorized to transact the business of a
trust company and to perform all the functions granted to such companies by the
laws of this state.
Given under my hand and official Seal at Columbus,
Ohio, this twenty-fifth day of November, A.D. 1919
Philip C. Berg,
Superintendent of Banks.
(SEAL)
9
<PAGE>
EXHIBIT 5
---------
BY-LAWS
-------
STAR BANK, N.A.
---------------
ARTICLE I
---------
MEETINGS OF SHAREHOLDERS
------------------------
SECTION 1. ANNUAL MEETING
- ---------- --------------
The annual meeting of shareholders shall be held in the main banking house of
the Association at 11:00 a.m. on the second Tuesday in February of each year.
Notice of such meeting shall be mailed to shareholders not less than ten (10)
nor more than sixty (60) days prior to the meeting date.
SECTION 2. SPECIAL MEETINGS
- ---------- ----------------
Special meetings of shareholders may be called and held at such times and upon
such notice as is specified in the Articles of Association.
SECTION 3. QUORUM
- ---------- ------
A majority of the outstanding capital stock represented in person or by proxy
shall constitute a quorum of any meeting of the shareholders, unless otherwise
provided by law, but less than a quorum may adjourn any meeting, from time to
time, and the meeting may be held as adjourned without further notice.
SECTION 4. INSPECTORS
- ---------- ----------
The Board of Directors may, and in the event of its failure so to do, the
Chairman of the Board shall appoint Inspectors of Election who shall determine
the presence of a quorum, the validity of proxies, and the results of all
elections and all other matters voted upon by shareholders at all annual and
special meetings of shareholders.
SECTION 5. VOTING
- ---------- ------
In deciding on questions at meetings of shareholders, except in the election of
directors, each shareholder shall be entitled to one vote for each share of
stock held. A majority of votes cast shall decide each matter submitted to the
shareholders, except where by law a larger vote is required. In all elections of
directors, each shareholder shall have the right to vote the number of shares
owned by him for as many persons as there are directors to be elected, or to
cumulate such shares and give one candidate as many votes as the number of
directors multiplied by the number of his shares equal, or to distribute them on
the same principle among as many candidates as he shall think fit.
10
<PAGE>
SECTION 6. WAIVER AND CONSENT
- ---------- ------------------
The shareholders may act without notice and/or a meeting by a unanimous written
consent by all shareholders.
ARTICLE II
----------
SECTION 1. TERM OF OFFICE
- ---------- --------------
The directors of this Association shall hold office for one year and until their
successors are duly elected and qualified.
SECTION 2. REGULAR MEETINGS
- ---------- ----------------
The organization meeting of the Board of Directors shall be held as soon as
practical following the annual meeting of shareholders at the main banking
house. Other regular meetings of the Board of Directors shall be held without
notice at 11:00 a.m. on the second Tuesday of each month except February, at the
main banking house, or, provided notice is given by telegram, letter, telephone
or in person to every Director, at such time and place as may be designated in
the notice of the meeting. When any regular meeting of the Board falls on a
holiday, the meeting shall be held on the next banking business day, unless the
Board shall designate some other day.
SECTION 3. SPECIAL MEETINGS
- ---------- ----------------
Special meetings of the Board of Directors may be called by the Chairman of the
Board of the Association, or at the request of three or more Directors. Notice
of the time, place and purposes of such meetings shall be given by telegram,
letter, telephone or in person to every Director.
SECTION 4. QUORUM
- ---------- ------
A majority of the entire membership of the Board shall constitute a quorum at
any meeting of the Board.
SECTION 5. NECESSARY VOTE
- ---------- --------------
A majority of those Directors present and voting at any meeting of the Board of
Directors shall decide each matter considered, except where otherwise required
by law or the Articles or By-Laws of this Association.
SECTION 6. COMPENSATION
- ---------- ------------
Directors, excluding full-time employees of the Bank, shall receive such
reasonable compensation as may be fixed from time to time by the Board of
Directors.
SECTION 7. ELECTION-AGE LIMITATION
- ---------- -----------------------
No person shall be elected or reelected a Director after reaching his seventieth
(70th) birthday, provided that any person who is a Director on December 10,
1985, may continue to be reelected
11
<PAGE>
SECTION 7. ELECTION-AGE LIMITATION (continued)
- ---------- -----------------------
a Director until he reaches his seventy-fifth (75th) birthday.
SECTION 8. RETIREMENT-AGE LIMITATION
- ---------- -------------------------
Every Director of the Bank shall retire no later than the first month next
following his seventieth (70th) birthday, except for any person who was a
Director on December 10, 1985, who shall retire not later that the first of the
next month following his seventy-fifth (75th) birthday.
SECTION 9. DIRECTORS EMERITUS
- ---------- ------------------
The Board shall have the right from time to time to choose as Directors Emeritus
persons who have had prior service as members of the Board and who may receive
such compensation as shall be fixed from time to time by the Board of Directors.
ARTICLE III
-----------
OFFICERS
--------
SECTION 1. WHO SHALL CONSTITUTE
- ---------- --------------------
The Officers of the Association shall be a Chairman of the Board, a President, a
Secretary, and other officers such as Chairman of the Executive Committee, Vice
Chairman of the Board, Executive Vice Presidents, Senior Vice Presidents, Vice
Presidents, Assistant Secretaries, Trust Officers, Trust Investment Officers,
Trust Real Estate Officers, Assistant Trust Officers, a Controller, Assistant
Controller, an Auditor and Assistant Auditors, as the Board may appoint from
time to time. Any person may hold two offices. The Chairman of the Board, all
Vice Chairmen of the Board and the President shall at all times be members of
the Board of Directors.
SECTION 2. TERM OF OFFICE
- ---------- --------------
All officers shall be elected for and shall hold office for one year and until
their successors are elected and qualified, subject to the right in the Board of
Directors by a majority vote of the entire membership to discharge any officer
at any time.
SECTION 3. CHAIRMAN OF THE BOARD
- ---------- ---------------------
The Chairman of the Board shall have general executive powers and duties and
shall perform such other duties as may be assigned from time to time by the
Board of Directors. In addition, unless the Board of Directors shall have
designated the President to be the Chief Executive Officer, the Chairman of the
Board shall be the Chairman Executive Officer and shall have all the powers and
duties of the Chief Executive Officer. He shall, when present, preside at all
meetings of shareholders and directors and shall be ex officio a member of all
committees of the Board. He shall name all members of the committees of the
Board, subject to the confirmation thereof by the Board.
12
<PAGE>
SECTION 3. CHAIRMAN OF THE BOARD (continued)
- ---------- ---------------------
If he is Chief Executive Officer, in the event that there is a vacancy in the
position of President or in the event of the absence or incapacity of the
President, the Chairman may appoint, or in the event of his failure to do so,
the Board of Directors or the Executive Committee thereof may designate any Vice
Chairman of the Board, any Executive Vice President or any Senior Vice President
of the Association temporarily to exercise the powers and perform the duties of
the Chairman as Chief Executive Officer when the Chairman is absent or
incapacitated.
If the President has been designated Chief Executive Officer by the Board of
Directors, in the event that there is a vacancy in the position of the President
or in the event of the absence or incapacity of the President, the Chairman
shall be the Chief Executive Officer of the Association and shall have all the
powers and perform all the duties of the President, including the powers to name
temporarily a Chief Executive Officer to serve in the absence of the Chairman.
SECTION 4. PRESIDENT
- ---------- ---------
The President shall have general executive powers and duties and shall perform
such other duties as may be assigned from time to time by the Board of
Directors. In addition, if designated by the Board of Directors, the President
shall be the Chief Executive Officer and shall have all the powers and duties of
the Chief Executive Officer, including the same power to name temporarily a
Chief Executive Officer to serve in the absence of the president if there is a
vacancy in the position of the Chairman or in the event of the absence or
incapacity of the Chairman.
If the Chairman has been designated Chief Executive Officer by the Board of
Directors, in the event that there is a vacancy in the position of the Chairman
of the Board or in the event of the absence or incapacity of the Chairman of the
Board, the President shall be the Chief Executive Officer of the Association and
shall have all the powers and perform all the duties of the Chairman of the
Board, including the same power to name temporarily a Chief Executive Officer to
serve in the absence of the President.
SECTION 5. CHAIRMAN OF THE EXECUTIVE COMMITTEE
- ---------- -----------------------------------
The Board of Directors shall have the power to elect a Chairman of the Executive
Committee. Any such Chairman of the Executive Committee shall participate in the
formation of the policies of the Association and shall have such other duties as
may be assigned to him from time to time by the President or by the Board of
Directors.
SECTION 6. VICE CHAIRMEN OF THE BOARD
- ---------- --------------------------
The Board of Directors shall have the power to elect one or more Vice Chairmen
of the Board of Directors. Any such Vice Chairmen of the Board shall participate
in the formation of the policies of the Association and shall have such other
duties as may be assigned to him from time to time by the Chairman of the Board
or by the Board of Directors.
13
<PAGE>
SECTION 7. OTHER OFFICERS
- ---------- --------------
The Secretary and all other officers appointed by the Board of Directors shall
have such duties as defined by law and as may from time to time be assigned to
them by the Chief Executive Officer or the Board of Directors.
SECTION 8. RETIREMENT
- ---------- ----------
Every officer of the Association shall retire not later than the first of the
month next following his sixty-fifth (65th) birthday. The Board of Directors
may, in its discretion, set the retirement date and terms of retirement of an
officer at a date later than provided above.
ARTICLE IV
----------
COMMITTEES
----------
SECTION 1. EXECUTIVE COMMITTEE
- ---------- -------------------
There shall be a standing committee of Directors in this Association to be known
as the Executive Committee. This Committee shall meet at 11:00 a.m. on the first
and fourth Tuesday of each month. It shall have all of the powers of the Board
of Directors between meetings of the Board, except as the Board only by law is
authorized to perform or exercise. All actions of the Executive Committee shall
be reported to the Board of Directors.
In the event that any member of the Executive Committee is unable to attend a
meeting of that committee, the Chairman of the Board or the President may, at
his discretion, appoint another Director to attend said meeting of the Executive
Committee and for that meeting to serve as a member of the Executive Committee
with full power to act in place of the absent regular member of the committee.
SECTION 2. COMPENSATION COMMITTEE
- ---------- ----------------------
There shall be a standing committee of directors of this Association to be known
as the Compensation Committee who shall review the compensation of all Executive
Officers and those officers who participate in the Profit Sharing Pool as well
as fees for directors of the Association. They will recommend specific
compensation arrangements to the Board of Directors for their confirmation.
SECTION 3. COMMITTEE ON AUDIT
- ---------- ------------------
There shall be a standing committee of Directors of this Association to be known
as the Committee on Audit, none of whose members shall be active officers of the
Association. This Committee shall make or cause to be made a suitable
examination of the affairs of the
14
<PAGE>
SECTION 3. COMMITTEE ON AUDIT (continued)
- ---------- ------------------
Association and the Trust Department at least once during each period of twelve
months. The results of such examination shall be reported in writing to the
Board at the next regular meeting thereafter stating whether the Association
and/or Trust Department is in a sound solvent condition, whether adequate
internal audit controls and procedures are being maintained and make such
recommendations as it deems advisable.
SECTION 4. TRUST COMMITTEE
- ---------- ---------------
There shall be a standing committee of Directors of this Association to be known
as the Trust Committee. The Trust Committee shall determine policies of the
Department and review actions of the Trust Investment Committee. All actions of
the Trust Committee shall be reported to the Board of Directors.
SECTION 5. TRUST INVESTMENT COMMITTEE
- ---------- --------------------------
There shall be a standing committee of this Association to be known as the Trust
Investment Committee composed of officers of the Association. The Trust
Investment Committee or such officers as may be duly designated by the Trust
Investment Committee, shall pass upon the acceptance of all trusts, the closing
out or relinquishment of all trusts and the making, retention, or disposition of
all investments of trust funds in conformity with policies established by the
Trust Committee. Actions of the Trust Investment Committee shall be reported to
the Trust Committee.
SECTION 6. PENSION COMMITTEE
- ---------- -----------------
There shall be a standing committee of directors or officers of this Association
to be known as the Pension Committee, who shall have the powers and duties as
set forth in the Association's Employees' Pension Plan. A report of the
condition of the pension fund shall be submitted annually to the Board of
Directors.
SECTION 7. OTHER COMMITTEES
- ---------- ----------------
The Chairman may appoint, from time to time, other committees for such purposes
and with such powers as he or the Board may direct.
15
<PAGE>
ARTICLE V
---------
SEAL
----
SECTION 1. IMPRESSION
- ---------- ----------
The following is an impression of the seal of this Association.
February 27, 1992
RESOLVED, That Article I, Section 1, Article II, Section 2 and Article IV,
Section 5 of the By-Laws of the Association be amended to state as follows:
ARTICLE I
---------
SECTION 1. ANNUAL MEETING
- ---------- --------------
The annual meeting of the shareholders shall be held in the main banking house
of the Association at 11:00 a.m. on the second Tuesday in March of each year.
Notice of such meeting shall be mailed to shareholders not less than ten (10)
nor more than sixty (60) days prior to the meeting date.
ARTICLE II
----------
SECTION 2. REGULAR MEETINGS
- ---------- ----------------
The organizational meeting of the Board of directors shall be held on the same
date as soon as practical following the annual meeting of shareholders at the
main banking house. Other regular meetings of the Board of Directors shall be
held without notice at 11:00 a.m. on the second Tuesday of June, September, and
December, at the main banking house, or, provided notice given by telegram,
letter, telephone or in person to every Director, at such time and place as may
be designated in the notice of the meeting. When any regular meeting of the
Board falls on a holiday, the meeting shall be held on the next banking business
day, unless the Board shall designate some other day.
ARTICLE IV
----------
SECTION 5. TRUST POLICY COMMITTEE
- ---------- ----------------------
There shall be a standing committee of this association to be known as the Trust
Policy Committee composed of officers of the Association. The Trust Policy
Committee or such officers as may be duly designated by the Trust Policy
Committee, shall pass upon the acceptance of all trusts, the closing out or
relinquishment of all trusts and the making, retention, or disposition of all
investments of trust funds in conformity with policies established by the Trust
Committee. Actions of the Trust policy committee shall be reported to the Trust
Committee.
16
<PAGE>
EXHIBIT 6
---------
THE CONSENT OF THE TRUSTEE
REQUIRED BY 321 (b) OF THE ACT
Firstar Bank, National Association, the Trustee executing the statement of
eligibility and qualification to which this Exhibit is attached does hereby
consent that reports of examinations of the undersigned by Federal, State,
Territorial or District authorities may be furnished by such authorities to the
Securities and Exchange Commission upon request therefor in accordance with the
provisions of 321 (b) of the Trust Indenture Act of 1939.
FIRSTAR BANK, NATIONAL ASSOCIATION
September 27, 1999 BY: /S/ Robert T. Jones
Date -----------------------
Robert T. Jones
Vice President and Trust Officer
17
<PAGE>
EXHIBIT 7
---------
Consolidated Report of Condition
Firstar Bank, N. A.
for June 30, 1999
All schedules are to be reported in thousands of dollars. Unless
otherwise indicated, report the amount outstanding as of the last business
day of the quarter.
<TABLE>
Balance Sheet
<CAPTION>
Dollar Amounts in
Thousands
<S> <C>
ASSETS
1. Cash and balances due from depository institutions
a. Noninterest-bearing balances and currency and coin $1,230,334
b. Interest-bearing balances 63,430
2. Securities:
a. Held-to-maturity securities 131,479
b. Available-for-sale securities 3,348,238
3. Federal funds sold and securities purchased under agreements to resell 638,933
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income 15,955,793
b. LESS: Allowance for loan and lease losses 211,901
c. LESS: Allocated transfer risk reserve 0
d. Loans and leases, net of unearned income, allowance, and reserve 15,743,892
5. Trading assets 1,001
6. Premises and fixed assets (including capitalized leases) 361,606
7. Other real estate owned 5,321
8. Investments in unconsolidated subsidiaries and associated companies 5,689
9. Customers' liability to this bank on acceptances outstanding 13,419
10. Intangible assets 797,761
11. Other assets 964,742
12. Total assets $23,305,845
</TABLE>
18
<PAGE>
EXHIBIT 7 continued
-------------------
Consolidated Report of Condition
Firstar Bank, N. A.
for June 30, 1999 Continued
All schedules are to be reported in thousands of dollars. Unless
otherwise indicated, report the amount outstanding as of the last business
day of the quarter.
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands
<S> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices $17,348,305
(1) Noninterest-bearing 2,831,146
(2) Interest-bearing 14,517,159
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs 67,135
(1) Noninterest-bearing 0
(2) Interest-bearing 67,135
14. Federal funds purchased and securities sold under agreements to 1,880,867
repurchase
15. a. Demand notes issued to the U.S. Treasury 93,837
b. Trading liabilities 0
16. Other borrowed money:
a. With a remaining maturity of one year or less 428,855
b. With a remaining maturity of more than one year through three 350,835
years
c. With a remaining maturity of more than three years 101,550
17. Not applicable
18. Bank's liability on acceptances executed and outstanding 13,419
19. Subordinated notes and debentures 460,092
20. Other liabilities 435,036
21. Total liabilities 21,179,931
22. Not applicable
23. Perpetual preferred stock and related surplus 0
24. Common Stock 89,800
25. Surplus [exclude all surplus related to preferred stock] 1,187,086
26. a. Undivided profits and capital reserves 839,211
b. Net unrealized holding gains (losses) on available-for-sale 9,817
securities
b. Net unrealized holding gains (losses) on available-for-sale 0
securities
27. Cumulative foreign currency translation adjustments 0
28. Total equity capital 2,125,914
29. Total liabilities, limited-life preferred stock, and equity capital $23,305,845
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