AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 21, 1999
Registration No. 333-88525
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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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)
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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|
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: |_|
------------------------
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.
================================================================================
The registrant hereby amends the Registration Statement, and the Prospectus, to
read as set forth herein.
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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 ISNOT 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.
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 21, 1999
PROSPECTUS Subject to Completion
October 21, 1999
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. 333-88525)
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.
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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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- 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 common stock
of any of our subsidiaries owned directly or indirectly by us
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 common 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.
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Ratios of Earnings to Fixed Charges
The ratio of earnings to fixed charges for each of the periods
indicated are as follows:
<TABLE>
<CAPTION>
SIX MONTHS
ENDED JUNE 30, YEAR ENDED DECEMBER 31,
-------------- -------------------------------------
1999 1998 1998 1997 1996 1995 1994
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to
fixed charges............. 3.64 3.27 2.83 3.15 3.06 3.47 3.39
</TABLE>
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
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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 common stock of
any of our subsidiaries owned directly or indirectly by us 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 common stock of
our subsidiaries (A) created at the time of our acquisition of the common stock
or within one year after our acquisition of the common stock to secure all or a
portion of the purchase price for the common stock or (B) existing on the common
stock at the time of our acquisition of it, or
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(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
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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.
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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.
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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.
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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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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
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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.
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
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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
(1)(b) Proposed Form of Distribution Agreement
(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.
II-2
<PAGE>
(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).
* Previously filed with Original Registration Statement on October 6,
1999.
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.
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
II-3
<PAGE>
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
<PAGE>
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 Amendment to
its Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, on the 21st 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
Amendment to its 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 21, 1999.
The required powers of attorney to Larry L. Weyers were filed with the
Registration Statement dated October 6, 1999.
II-5
<PAGE>
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
(1)(b) Proposed Form of Distribution Agreement
(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).
* Previously filed with Original Registration Statement on October 6,
1999.
II-6
Exhibit 1(a)
WPS RESOURCES CORPORATION
UNDERWRITING AGREEMENT
[Date]
[Name and Address of Underwriters
or Representatives]
Ladies and Gentlemen:
WPS Resources Corporation, a Wisconsin corporation (the "Company")
confirms its agreement (the "Agreement") with the underwriters named in Schedule
B (collectively, the "Underwriters," which term shall also include any
underwriter substituted as hereinafter provided in Section 10 hereof), for whom
you are acting as representatives (the "Representatives"), with respect to the
issue and sale by the Company and the purchase by the Underwriters, acting
severally and not jointly, of (1) the principal amount of its senior debt
securities, if any, identified in Schedule A hereto (the "Senior Securities"),
to be issued under an Indenture dated as of October 1, 1999, between the Company
and Firstar Bank, National Association, as trustee (the "Senior Trustee"), as
from time to time amended and supplemented (the "Senior Indenture"); (2) the
principal amount of its subordinated debt securities, if any, identified in
Schedule A hereto (the "Subordinated Securities" and together with the Senior
Securities, the "Debt Securities") to be issued under an Indenture dated as of
___________________ between the Company and ____________, as trustee (the
"Subordinated Trustee" and, together with the Senior Trustee, the "Trustees") (
the "Subordinated Indenture" and, together with the Senior Indenture, the
"Indentures"); (3) the common stock, par value $0.01 per share, of the Company
(the "Common Stock"), including, if then in existence, the related common stock
purchase rights (the "Rights") provided for in the Rights Agreement dated
December 12, 1996, between the Company and Firstar Trust Company, as rights
agent (the "Rights Agreement") (all references herein to the Common Stock shall
include the Rights unless the context indicates otherwise), if any, as indicated
in Schedule A hereto. The Senior Securities, Subordinated Securities and Common
Stock, if any, described in Schedule A hereto shall collectively be referred to
herein as the "Securities." If the firm or firms listed in Schedule B hereto
include only the firm or firms described above as
<PAGE>
Representatives, then the terms "Underwriters" and "Representatives", as used
herein, shall each be deemed to refer to such firm or firms. The Securities are
more fully described in the Final Prospectus (as defined below).
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No.333-88525) relating to
the Securities and the offering thereof from time to time in accordance with
Rule 415 under the Securities Act of 1933, as amended (the "1933 Act"), and has
filed such amendments thereto as may have been required to the date hereof. Such
registration statement, as amended, has been declared effective by the
Commission. The Company has filed with the Commission pursuant to Rule 424(b)
under the 1933 Act any preliminary prospectus used in connection with the
offering of the Securities prior to the date hereof and required to be so filed.
The Company proposes to file with the Commission pursuant to Rule 424(b) under
the 1933 Act a supplement to the form of prospectus included in such
registration statement relating to the Securities and the plan of distribution
thereof. Such registration statement, including the exhibits thereto, as amended
at the date of this Agreement, is hereinafter called the "Registration
Statement;" such prospectus in the form in which it appears in the Registration
Statement is hereinafter called the "Basic Prospectus;" and such supplemented
form of prospectus, in the form in which it shall be filed with the Commission
pursuant to Rule 424(b) (including the Basic Prospectus as so supplemented) is
hereinafter called the"Final Prospectus." Any preliminary form of the Final
Prospectus which has heretofore been filed pursuant to Rule 424(b) is
hereinafter called the "Preliminary Prospectus." Any reference herein to the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus or the
Final Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Securities Exchange Act of 1934, as amended (the "1934 Act"), on
or before the date of this Agreement, or the issue date of the Basic Prospectus,
any Preliminary Prospectus or the Final Prospectus, as the case may be; provided
that if the Company files a registration statement with the Commission pursuant
to Rule 462(b) under the Act (the "Rule 462(b) Registration Statement"), then,
after such filing, all references to the "Registration Statement" shall also be
deemed to include the Rule 462 Registration Statement; and any reference herein
to the terms "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing of any
document under the 1934 Act after the date of this Agreement, or the issue date
of the Basic Prospectus, any Preliminary Prospectus or the Final Prospectus, as
the case may be, deemed to be incorporated therein by reference. All references
in this Agreement to financial statements and schedules and other information
which is "contained," "included" or "stated" in the Registration Statement or
the Final Prospectus (and all other references of like import) shall be deemed
to mean and include all such financial statements and schedules and other
information that are or are deemed to be incorporated by reference in the
Registration Statement or the Final Prospectus, as the case may be.
For purposes of this Agreement, all references to the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus, the Final
Prospectus or any amendment or
2
<PAGE>
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval System ("EDGAR").
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date hereof and as of the
Closing Time referred to in Section 2(c) hereof and agrees with each Underwriter
as follows.
(i) Due Incorporation and Qualification. The Company has been
duly incorporated and is validly existing as a corporation under the
laws of the State of Wisconsin with power and authority (corporate and
other) to own, lease and operate its properties and conduct its
business as described in the Registration Statement and Final
Prospectus; the Company has not filed Articles of Dissolution with the
Department of Financial Institutions of the State of Wisconsin, and no
grounds exist for the Department of Financial Institutions of the State
of Wisconsin to dissolve such corporation administratively pursuant to
the provisions of the Wisconsin Business Corporation Law; the Company
is duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which its ownership or lease
of substantial properties or the conduct of its business requires such
qualification, except where the failure to so qualify and be in good
standing would not result in a material adverse change in the condition
(financial or other), net worth or results of operations or business
affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise, whether or not arising in the ordinary
course of business (a "Material Adverse Effect")
(ii) Subsidiaries. Each subsidiary of the Company which is a
significant subsidiary (each a "Significant Subsidiary"), as defined in
Rule 405 of Regulation C of the 1933 Act Regulations), has been duly
incorporated and is validly existing as a corporation under the laws of
the jurisdiction of its incorporation, and has corporate power and
authority to own, lease and operate its properties and conduct its
business as described in the Registration Statement and Final
Prospectus; no Significant Subsidiary which is incorporated under the
laws of the State of Wisconsin has filed Articles of Dissolution with
the Department of Financial Institutions of the State of Wisconsin, and
no grounds exist for the Department of Financial Institutions of the
State of Wisconsin to dissolve any such Significant Subsidiary
administratively pursuant to the provisions of the Wisconsin Business
Corporation Law; each Significant Subsidiary is duly qualified as a
foreign corporation to transact business and is in good standing in
each jurisdiction in which the ownership or lease of substantial
properties or the conduct of its business requires such qualification,
except where the failure to so qualify or to be in good standing would
not result in a Material Adverse Effect.
3
<PAGE>
(iii) Authorization of Stock of the Company. All of the issued
and outstanding shares of Common Stock have been duly authorized and
validly issued and are fully paid and nonassessable, except with
respect to wage claims of employees of the Company as provided in
Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as
such statutory provision has been judicially interpreted; in the case
of an offering of Common Stock, (A) the authorized, issued and
outstanding capital stock of the Company is as set forth in the Final
Prospectus under the caption "Capitalization" (except for subsequent
issuances, if any, pursuant to employee benefit plans referred to in
the Final Prospectus), (B) the certificate for each outstanding share
of Common Stock also represents one Right per share (if the Rights are
then in existence), and (C) (if the Rights Agreement is then in effect)
the outstanding Rights have been duly authorized and validly issued
under the Rights Agreement and are entitled to the benefits thereof.
(iv) Ownership of Significant Subsidiaries. All of the issued
and outstanding shares of capital stock of the Significant Subsidiaries
have been duly and validly issued, are fully paid and non-assessable,
except with respect to wage claims of employees of those Significant
Subsidiaries which are subject to Section 180.0622(2)(b) of the
Wisconsin Business Corporation Law, as such statutory provision has
been judicially interpreted; the Company owns, beneficially and of
record, all of the common stock of each Significant Subsidiary,
directly or through subsidiaries, in each case free and clear of any
mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of the Significant Subsidiaries
were issued in violation of the preemptive or similar rights of any
securityholder of such subsidiary. Other than the Significant
Subsidiaries, the Company has no subsidiaries which, either
individually or considered in the aggregate as a single subsidiary,
constitute a "significant subsidiary" as defined in Rule 405 under the
1933 Act Regulations.
(v) Compliance with Registration Requirements.
(A) The Company meets the requirements for use of
Form S-3 under the 1933 Act and the rules and regulations of the 1933
Act (the "1933 Act Regulations"). The Registration Statement has become
effective under the 1933 Act and the 1933 Act Regulations, and no stop
order suspending the effectiveness of such Registration Statement has
been issued, and no proceedings for that purpose have been instituted
or are pending or, to the knowledge of the Company, threatened by the
Commission. The Company has complied with any request on the part of
the Commission for additional information.
(B) On the effective date of the Registration
Statement (including any Rule 462(b) Registration Statement), as of the
date hereof, when, prior to the Closing Date (as hereinafter defined),
any amendment to the Registration Statement becomes effective
(including the filing of any document incorporated by reference in the
Registration Statement), and at the applicable Closing Date, (i) the
Registration Statement, as amended as of any such time, and the
Indentures complied or will comply in all material respects
4
<PAGE>
with the applicable requirements of the 1933 Act, the 1933 Act
Regulations, the 1939 Act, and the rules and regulations of the
Commission under the 1939 Act ("the 1939 Act Regulations"), and (ii)
the Registration Statement, as amended as of any such time, did not and
will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading. The representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or any amendment or
supplement thereto made in reliance upon and in conformity with
information furnished to the Company in writing by an Underwriter, or
by the Representatives on behalf of an Underwriter, expressly for use
in the Registration Statement or any amendment or supplement thereto or
to any statements in or omissions from the Statements of Eligibility of
the Trustees on Form T-1 (the "Form T-1's").
(C) On its issue date, when filed with the Commission pursuant
to Rule 424(b) under the 1933 Act, and, in the case of the Final
Prospectus, as of the date hereof and at the applicable Closing Date,
(i) each Preliminary Prospectus and the Final Prospectus complied or
will comply when so filed in all material respects with the applicable
requirements of the 1933 Act and the 1933 Act Regulations, and (ii)
each Preliminary Prospectus and the Final Prospectus did not and will
not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading. The representations and
warranties in this subsection shall not apply to statements in or
omissions from any Preliminary Prospectus or the Final Prospectus made
in reliance upon and in conformity with information furnished to the
Company in writing by an Underwriter, or by the Representatives on
behalf of an Underwriter, expressly for use in the Preliminary
Prospectus or the Final Prospectus. Each Preliminary Prospectus and the
Final Prospectus delivered to the Underwriters for use in connection
with the offering of the Securities was identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR,
except to the extent permitted by Regulation S-T under the 1933 Act
Regulations.
(vi) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement
and Final Prospectus, (A) at the time they were or hereafter are filed
with the Commission, complied and will comply in all material respects
with the requirements of the 1934 Act and the rules and regulations of
the Commission under the 1934 Act ("the 1934 Act Regulations"), and (B)
at the time the Registration Statement and any amendments thereto
became effective, at the time any Preliminary Prospectus and the Final
Prospectus were issued, and at the Closing Time, when read together
with the other information in the Registration Statement, the
Preliminary Prospectus and the Final Prospectus, as applicable, did not
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading.
5
<PAGE>
(vii) Accountants. The accountants who audited the annual
financial statements and supporting schedules included or incorporated
by reference in the Registration Statement and the Final Prospectus are
independent public accountants with respect to the Company and its
subsidiaries within the meaning of the 1933 Act and the 1933 Act
Regulations.
(viii) Financial Statements. The financial statements and any
supporting schedules included or incorporated by reference in the
Registration Statement, any Preliminary Prospectus, and the Final
Prospectus, present fairly the financial position of the Company and
its consolidated subsidiaries as of the dates indicated and the results
of operations, stockholders' equity and cash flows of the Company and
its consolidated subsidiaries for the periods specified; such financial
statements have been prepared in conformity with generally accepted
accounting principles which have been consistently applied in all
material respects throughout the periods involved, except as may
otherwise be stated therein and except to the extent that certain
information normally disclosed in financial statements and related
notes may be omitted or condensed in the quarterly financial statements
of the Company and its consolidated subsidiaries if done so pursuant to
the rules and regulations of the SEC. The Company's ratios of earnings
to fixed charges included in any Preliminary Prospectus and the Final
Prospectus under the caption "Ratios of Earnings to Fixed Charges" and
in Exhibit 12 to the Registration Statement have been calculated in
compliance with Item 503(d) of Regulation S-K of the Commission.
(ix) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company and, upon execution
and delivery by or on behalf of the Underwriters, will constitute the
legal, valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally or by general
principles of equity (the "Bankruptcy Exceptions").
(x) The Common Stock. In the case of an offering of shares of
Common Stock, the shares of Common Stock being delivered and paid for
at the Closing Date have been duly authorized, validly issued and are
fully paid and nonassessable, except with respect to wage claims of
employees of the Company as provided in Section 180.0622(2)(b) of the
Wisconsin Business Corporation Law, as such statutory provision has
been judicially interpreted; the related Rights (if the Rights
Agreement is then in effect) have been duly authorized and validly
issued under the Rights Agreement and are entitled to the benefits
thereof; and neither the issuance of the shares of Common Stock nor the
issuance of the related Rights is subject to preemptive rights.
(xi) Senior Indenture. In the case of an offering of Senior
Securities, the Senior Indenture has been duly and validly authorized,
executed and delivered by the Company; the Senior Indenture has been
duly qualified under the 1939 Act; and, assuming due
6
<PAGE>
authorization, execution and delivery by the Trustee, the Senior
Indenture constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally or by general principles of equity (the "Bankruptcy
Exceptions").
(xii) Senior Securities. In the case of an offering of Senior
Securities, the Senior Securities have been duly and validly authorized
by the Company and, when executed by the proper officers of the
Company, and authenticated in accordance with the provisions of the
Senior Indenture and delivered to and paid for by the Underwriters
pursuant to this Agreement, will constitute valid and binding
obligations of the Company entitled to the benefits of the Senior
Indenture and enforceable against the Company in accordance with their
terms, except as enforcement thereof may be limited by the Bankruptcy
Exceptions; the Senior Securities are in the form contemplated by the
Senior Indenture.
(xiii) Subordinated Indenture. In the case of an offering of
Subordinated Securities, the Subordinated Indenture has been duly and
validly authorized, executed and delivered by the Company; the
Subordinated Indenture has been duly qualified under the 1939 Act; and,
assuming due authorization, execution and delivery by the Trustee, the
Subordinated Indenture constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by the Bankruptcy
Exceptions.
(xiv) Subordinated Securities. In the case of an offering of
Subordinated Securities, the Subordinated Securities have been duly and
validly authorized by the Company and, when executed by the proper
officers of the Company, and authenticated in accordance with the
provisions of the Subordinated Indenture and delivered to and paid for
by the Underwriters pursuant to this Agreement, will constitute valid
and binding obligations of the Company entitled to the benefits of the
Subordinated Indenture and enforceable against the Company in
accordance with their terms, except as enforcement thereof may be
limited by the Bankruptcy Exceptions; the Subordinated Securities are
in the form contemplated by the Subordinated Indenture.
(xv) Conforming Documents. The Securities, the Rights, and, in
the case of an offering of Debt Securities, the applicable Indenture,
will conform in all material respects to the respective statements
relating thereto contained in any Preliminary Prospectus, the Final
Prospectus and the Registration Statement and will be in substantially
the respective forms filed or incorporated by reference, as the case
may be, as exhibits to the Registration Statement.
(xvi) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement, any amendment thereto, and the Final Prospectus and except
as may otherwise be stated or contemplated therein, (a) the
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Company and its subsidiaries considered as one enterprise have not
sustained any material loss or interference with their business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, (b) there has not been any material change in the
capital stock, short-term debt or long-term debt of the Company and its
subsidiaries considered as one enterprise, except for borrowings under
existing revolving credit agreements and pursuant to the Company's
existing commercial paper and 4(2) short-term note program, in each
case consistent with past practices, and the accrual of interest on
long-term debt of the Company's Employee Stock Ownership Plan that is
guaranteed by Wisconsin Public Service Corporation, or any material
adverse change, or any development involving a prospective material
adverse change, in the condition (financial or other), net worth or
results of operations or business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business, and (c) there has not
been any material transaction entered into by the Company and its
subsidiaries considered as one enterprise, other than transactions in
the ordinary course of business. The Company does not have any material
contingent obligations required to be disclosed in the Registration
Statement and Final Prospectus which are not disclosed therein.
(xvii) No Defaults; Regulatory Compliance. Neither the Company
nor any Significant Subsidiary is in violation of its articles of
incorporation or by-laws or in breach or default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in the Indenture or in any other material contract, mortgage,
loan agreement, lease, note or other instrument to which it is a party
or by which it or any of them may be bound or to which any of their
properties may be subject, or any rule, order, law, administrative
regulation or administrative or court order, except to the extent set
forth in the Registration Statement and Final Prospectus.
(xviii) No Conflicts. The execution and delivery of this
Agreement and, in the case of an offering of Debt Securities, the
applicable Indenture, the issuance, sale and delivery by the Company of
the Securities, the compliance by the Company with the provisions of
this Agreement and, in the case of an offering of Debt Securities, the
provisions of the applicable Indenture and Debt Securities, and the use
of the proceeds from the sale of the Securities as described in the
Final Prospectus under the caption "Use of Proceeds" do not and will
not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, the articles of
incorporation or by-laws of the Company, any material contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which the Company or any Significant Subsidiary is a
party, or by which it or any of them is bound or to which any of their
properties may be subject, or result in the violation of any law,
order, rule, administrative regulation or administrative or court
decree applicable to the Company or any Significant Subsidiary of any
court or of any Federal or state regulatory body or administrative
agency or other governmental body having jurisdiction over the Company
or any Significant Subsidiary or their respective properties; there are
no proceedings, at law or in equity or before any governmental
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agency or body, pending, or to the knowledge of the Company threatened,
which affect or may affect any of the transactions contemplated by this
Agreement; and the Company has full power and lawful authority to
authorize, issue and sell the Securities on the terms and conditions
herein set forth.
(xix) No Consents. No filing with, or consent, approval,
authorization, order, or decree of, any court or governmental authority
or agency is necessary or required for the performance by the Company
of its obligations hereunder or in connection with the offering,
issuance or sale of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement, except such as have been
already obtained or as may be required under the 1933 Act, the 1933 Act
Regulations, the 1939 Act, the 1939 Act Regulations or state securities
laws.
(xx) Public Utility Holding Company Act Compliance. The
Company is not currently required to register as a "holding company"
under the Public Utilities Holding Company Act of 1935, as amended.
(xxi) Legal Proceedings. Except as set forth in the
Registration Statement and Final Prospectus, there is no action, suit,
proceeding, inquiry or investigation before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, overtly threatened, against or affecting
the Company or any of its subsidiaries which is required to be
disclosed in the Registration Statement or the Final Prospectus or
which might result in a Material Adverse Effect or adversely affect the
consummation of the transactions contemplated in this Agreement or the
performance by the Company of its obligations hereunder; the aggregate
of all pending legal or governmental proceedings to which the Company
or any of its subsidiaries is a party or of which any of their
respective property or assets is the subject which are not described in
the Registration Statement or the Final Prospectus, including ordinary
routine litigation incidental to the business, would not, if adversely
determined, result in a Material Adverse Effect.
(xxii) Exhibits. There are no contracts or other documents of
the Company or any of its subsidiaries which are required to be
described in the Registration Statement, any Preliminary Prospectus,
the Final Prospectus, or the documents incorporated by reference
therein or to be filed as exhibits thereto which have not been so
described and filed as required.
(xxiii) Licenses and Authorizations. The Company and its
subsidiaries possess all licenses, certificates, permits and other
authorizations issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct their respective
businesses, and neither the Company nor any of its subsidiaries has
received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or
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finding, would have a Material Adverse Effect, except as set forth in
or contemplated in the Registration Statement and Final Prospectus.
(xxiv) Restrictions on Dividends. The Final Prospectus
(including the documents incorporated by reference therein) accurately
describes the most restrictive of the existing limitations on the
payment of dividends by WPSC on the shares of common stock of WPSC held
by the Company.
(xxv) Internal Accounting Controls. The Company and each of
its subsidiaries maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
(xxvi) Environmental Compliance. The Company and each of its
subsidiaries are (i) in compliance with any and all applicable foreign,
federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("Environmental
Laws"), (ii) have received and are in compliance with all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses, and (iii)
have not received notice of any actual or potential liability for the
investigation or remediation of any disposal or release of hazardous or
toxic substances or wastes, pollutants or contaminants, except where
such non-compliance with Environmental Laws, failure to receive
required permits, licenses or other approvals, or liability would not,
individually or in the aggregate, have a Material Adverse Effect,
except as set forth in or contemplated in the Registration Statement
and Final Prospectus. Except as set forth in the Registration Statement
and Final Prospectus, neither the Company nor any of its subsidiaries
has been named as a "potentially responsible party" under the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended, except in such instances which would not,
individually or in the aggregate, have a Material Adverse Effect.
(xxvii) Year 2000 Compliance. In the case of offerings of
Securities before January 1, 2000, the Company, on behalf of itself and
each of its subsidiaries, has implemented, or caused to be implemented,
a comprehensive, detailed program to analyze and address the risk that
the computer hardware and software used by it may be unable to
recognize and properly execute date-sensitive functions involving
certain dates prior to and any dates after December 31, 1999, and
reasonably believe that such risk will be remedied on a
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timely basis without material expense, except as set forth or
contemplated in the Registration Statement and Final Prospectus, and
will not have a Material Adverse Effect.
(xxviii) Investment Company Act. The Company is not an
"investment company or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended (the "Investment Company Act"), and is not required to register
or take any other action with respect to or under the Investment
Company Act by reason of the issuance of any of the Securities by the
Company.
(xxix) Listing of the Securities. In the case of an offering
of Common Stock or Debt Securities which, by their terms, are to be
listed on the New York Stock Exchange, the shares of Common Stock
offered and sold under the Registration Statement or such Debt
Securities have been approved for listing on the New York Stock
Exchange.
(b) Officer Certificates. Any certificate signed by any
officer of the Company or any of its subsidiaries that is delivered to the
Underwriters shall be deemed a representation and warranty by the Company to
each Underwriter as to the matters stated therein.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
Purchase and Sale. (a) Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to issue and sell to each Underwriter, and each Underwriter,
severally and not jointly, agrees to purchase from the Company, at the public
offering price and upon the terms and conditions set forth in Schedule A hereto
the principal amount or number of Securities set forth opposite such
Underwriter's name in Schedule B hereto.
(b) As compensation for their commitments hereunder, the
Company will pay to the Representatives, for the account of the Underwriters, on
the applicable Closing Date, an amount equal to the total underwriting
commission specified for the Securities in Schedule A hereto .
(c) Delivery and Payment. Delivery of the Securities shall be
made at the office of _____________ or at such other place as shall be agreed
upon by the Representatives and the Company or at the office of The Depository
Trust Company ("DTC") if the Securities are to be issued in book-entry form. The
Company will deliver the Securities to the Representatives, for the account of
each Underwriter, against payment by and behalf of such Underwriter of a
purchase price equal to the public offering price therefor reflected in Schedule
A, as appropriate. If the Securities are to be issued in book-entry form, such
delivery shall be made by causing DTC to credit the Securities to the account of
the Representatives at DTC. Payment of the purchase price shall be made to the
Company by wire transfer of immediately available funds to a bank account
designated by the Company. It is understood that each Underwriter has authorized
the Representatives, for its account, to accept delivery of, issue receipt for,
and make payment of the
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purchase price for, the Securities which it has agreed to purchase. The closing
of the sale of the Securities shall take place at the offices of Foley &
Lardner, 777 East Wisconsin Avenue, Milwaukee, Wisconsin 53202 or at such other
place as shall be agreed upon by the Company and the Underwriters, at 9:00 A.M.
(central time) on the third (fourth, if the pricing occurs after 4:30 P.M.
(Eastern time) on any given day) business day after the date hereof (unless
postponed in accordance with the provisions of Section 10), or such other time
not later than ten business days after such date as shall be agreed upon by the
Underwriters and the Company (such time and date being herein called the
"Closing Time").
At the Closing Time, the Company will pay, or cause to be paid, the
total underwriting commission payable to the Underwriters at such time under
Section 2(b) to a bank account designated by the Representatives, on behalf of
the Underwriters, by wire transfer of immediately available funds. If mutually
agreed by the Company and the Underwriters, the amount of the total underwriting
commission due to the Underwriters may be offset by the Underwriters against the
amount of the purchase price for the Securities payable by the Underwriters to
the Company pursuant to this Section 2(a).
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission
Requests. Immediately following the execution of this Agreement, the Company
will prepare a Final Prospectus setting forth the principal amount or number of
Securities covered thereby and their terms (not otherwise specified in the
applicable Indenture in the case of Debt Securities), the names of the
Underwriters and the principal amount or number of Securities which each
severally has agreed to purchase, the names of the Representatives, the price at
which the Securities are to be purchased by the Underwriters from the Company,
the initial public offering price, the selling concession and reallowance, if
any, and such other information as the Representatives and the Company deem
appropriate in connection with the offering of the Securities. The Company will
promptly transmit copies of the Final Prospectus to the Commission for filing
pursuant to Rule 424 of the 1933 Act and will furnish to the Underwriters named
therein as many copies of the Final Prospectus and any Preliminary Prospectus
as such Underwriters shall reasonably request.
(b) Amendments. The Company will notify the Representatives
immediately, and promptly confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become effective,
or (ii) of the mailing or the delivery to the Commission for filing, after the
date of this Agreement and prior to the Closing Date, of any supplement to the
Final Prospectus or any document to be filed pursuant to the 1934 Act which will
be incorporated by reference into the Registration Statement or Final
Prospectus, (iii) of the receipt of any comments or other communications from
the Commission with respect to the Registration Statement, the Basic Prospectus,
any Preliminary Prospectus or the Final Prospectus, (iv) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Basic Prospectus, any Preliminary Prospectus or the Final
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Prospectus or for additional information, and (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement of any order preventing or suspending the use of any Preliminary
Prospectus, or of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect the
filings necessary pursuant to Rule 424 (b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted for
filing under Rule 424(b) was received for filing by the Commission and, in the
event that it was not, it will promptly file such prospectus. The Company will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
The Company will give the Underwriters notice of its intention to file
or prepare any amendment to the Registration Statement or any amendment,
supplement or revision to either the prospectus included in the Registration
Statement at the time it became effective or to the Final Prospectus, whether
pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the
Underwriters with copies of any such documents a reasonable amount of time prior
to such proposed filing or use, as the case may be, and will not file or use any
such document (excluding documents incorporated by reference in the Registration
Statement) to which the Underwriters or counsel for the Underwriters shall
reasonably object.
(c) Delivery of Registration Statements. The Company has
furnished or will deliver to the Underwriters and counsel for the Underwriters,
without charge, such number of signed and conformed copies of the Registration
Statement as originally filed and of each amendment thereto (including exhibits
filed therewith or incorporated by reference therein and documents incorporated
or deemed to be incorporated by reference therein) and signed copies of all
consents and certificates of experts. The copies of the Registration Statement
and each amendment thereto furnished to the Underwriters will be identical to
the electronically transmitted copies thereof filed with the Commission pursuant
to EDGAR, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company will furnish to each
Underwriter, without charge, during the period when the Final Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such number of
copies of the Final Prospectus (as amended or supplemented following the date
of this Agreement) as such Underwriter may reasonably request. The Final
Prospectus (and any amendments or supplements thereto following the date of this
Agreement) furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company
will comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and
the 1934 Act Regulations so as to permit the completion of the distribution of
the Securities as contemplated in this Agreement and in the Final Prospectus. If
at any time when a prospectus is required by the 1933
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<PAGE>
Act to be delivered in connection with sales of the Securities, any event shall
occur or condition shall exist as a result of which it is necessary, in the
opinion of counsel for the Underwriters or for the Company, to amend the
Registration Statement or amend or supplement the Final Prospectus in order that
the Final Prospectus will not include any untrue statements of a material fact
or omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the time it
is delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend or
supplement the Final Prospectus in order to comply with the requirements of the
1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file
with the Commission, subject to Section 3(b), such amendment or supplement as
may be necessary to correct such statement or omission or to make the
Registration Statement or the Final Prospectus comply with such requirements,
and the Company will furnish to the Underwriters such number of copies of such
amendment or supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its
reasonable best efforts, in cooperation with the Underwriters, to qualify the
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions as the Underwriters may designate and to maintain
such qualifications in effect for as long as may be necessary to complete the
distribution of the Securities; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified.
(g) Rule 158. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally available
to its securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the proceeds
received by it from the sale of the Securities in the manner specified in the
Final Prospectus under "Use of Proceeds."
(i) Restriction on Sale of Common Stock. In the event that the
Securities being issued and sold pursuant to this Agreement are shares of Common
Stock, for the period beginning on the date of this Agreement and ending on the
date specified in Schedule A , the Company will not, without the
Representatives' prior written consent, directly or indirectly, sell, offer to
sell, grant any option for the sale of, enter into an agreement to sell, or
otherwise dispose of, any shares of Common Stock or any securities convertible
into or exercisable for shares of Common Stock, except for shares of Common
Stock sold pursuant to this Agreement and shares of Common Stock issued
pursuant to employee benefit plans of the Company, and the Company will not
file a registration statement under the 1933 Act with respect to any such
securities or any such securities of the Company held by others.
(j) Restriction on Sale of Debt Securities. In the event that
any of the Securities being issued and sold pursuant to this Agreement are
Securities other than Common
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Stock, for the period beginning on the date of this Agreement and ending on the
date specified in Schedule A , the Company will not, without the
Representatives' prior written consent, directly or indirectly, sell, offer to
sell, grant any option for the sale of, enter into an agreement to sell, or
otherwise dispose of, any Securities to which this Agreement relates or
securities similar to such Securities, or any securities convertible into or
exchangeable or exercisable for any such Securities or any such similar
securities, except for Securities sold pursuant to this Agreement, and the
Company will not file a registration statement under the 1933 Act with respect
to any such Securities or securities similar to such securities of the Company
held by others.
(k) Reporting Requirements. The Company, during the period
when the Final Prospectus is required to be delivered under the 1933 Act or the
1934 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act and
the 1934 Act Regulations.
(l) Listing of Securities. The Company will file all documents
and notices and take such further actions as may be required to continue to
list, on the New York Stock Exchange, any shares of Common Stock offered and
sold pursuant to this Agreement or any Debt Securities which, by their terms,
are to be listed on the New York Stock Exchange or any other securities
exchange.
SECTION 4. Payment of Expenses. (a) Expenses. The Company will pay all
expenses incident to the performance of the Company's obligations under this
Agreement, including, but not limited to, (i) the preparation, reproduction and
filing of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto, (ii) the
preparation, issuance and delivery of the certificates for the Securities to the
Underwriters, including any transfer taxes and any stamp or other duties payable
upon the sale, issuance, or delivery of the Securities, (iii) any fees charged
by Standard & Poor's Ratings Services ("S&P") or Moody's Investors Services,
Inc. ("Moody's") or any other nationally recognized securities rating agency
(each, a "Rating Agency") for rating the Securities, (iv) all fees and expenses
in connection with the listing of any Securities on the New York Stock Exchange,
(v) the qualification of the Securities under securities laws in accordance with
the provisions of Section 3(f) hereof, including filing fees and the reasonable
fees and disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of the Blue Sky Survey, if any, and any
supplement thereto, (vi) the printing and delivery to the Underwriters of copies
of each Preliminary Prospectus, the Final Prospectus, and any amendments or
supplements thereto, (vii) the preparation, reproduction and delivery to the
Underwriters of copies of the Blue Sky Survey, if any, and any supplement
thereto, (viii) the fees and expenses of any transfer agent or registrar for the
Securities, (ix) the fees andexpenses of the Trustees, including the fees and
reimbursements of counsel for the Trustees in connection with the Indentures,
and (x) the cost of qualifying the Securities with The Depository Trust Company.
(b) Termination of Agreement. If this Agreement is terminated
by the Underwriters in accordance with the provisions of Section 5 or Section
10(b) hereof, the Company
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shall reimburse the Underwriters for all of their reasonable out-of-pocket
expenses, including the fees and disbursements of counsel for the Underwriters.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of
the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any subsidiary delivered
pursuant to the provisions hereof, to the performance by the Company of its
covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Final
Prospectus shall have been filed with the Commission pursuant to Rule 424(b)
within the applicable time period prescribed for such filing by the 1933 Act
Regulations, and no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission.
(b) Opinion of Counsel for the Company. At Closing Time, the
Underwriters shall have received the favorable opinion, dated as of Closing
Time, of Foley & Lardner, counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, to the effect set forth in Exhibit
A hereto.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Underwriters shall have received the favorable opinion, dated as of Closing
Time, of Schiff Hardin & Waite, counsel for the Underwriters, with respect to
the validity of the Securities, the Registration Statement, the Final Prospectus
and other related matters as the Underwriters may reasonably request (it being
understood that such counsel may rely as to all matters of Wisconsin law and
legal conclusions based thereon upon the opinion of counsel for the Company
referred to in Section 5(b).
Such counsel may also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon certificates of
officers of the Company and its subsidiaries and certificates of public
officials.
(d) Officer Certificates. At the Closing Time, there shall not
have been, since the date hereof or since the respective dates as of which
information is given in the Final Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of business, and the
Underwriters shall have received certificates of the President or a Vice
President of the Company and of the chief financial or chief accounting officer
of the Company, dated as of Closing Time, to the effect that (A) there has been
no such material adverse change, (B) the representations and warranties in
Section 1(a) hereof are true and correct with the same force and effect as
though expressly made at and as of Closing Time, (C) the Company has complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to Closing Time, and (D) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
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proceedings for that purpose have been instituted or are pending or, to the best
knowledge of the Company, are threatened by the Commission.
(e) Accountant's Comfort Letter. At the time of the execution
of this Agreement, the Underwriters shall have received from Arthur Andersen LLP
a letter, dated as of the date hereof, in form and substance reasonably
satisfactory to the Underwriters, to the effect that:
(i) they are independent public accountants with respect to
the Company and its subsidiaries within the meaning of the 1933 Act and
the applicable 1933 Act Regulations;
(ii) in their opinion, the audited consolidated financial
statements and financial statement schedule(s) incorporated by
reference in the Registration Statement and the Final Prospectus and
included in the Company's most recent Annual Report on Form 10-K (the
"Form 10-K") comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act, the 1933 Act
Regulations, the 1934 Act and the applicable 1934 Act Regulations;
(iii) on the basis of (A) the performance of procedures
specified by the American Institute of Public Accountants for a review
of interim financial information as described in Statement on Auditing
Standards No. 71, Interim Financial Information, on the unaudited
consolidated balance sheets, the unaudited consolidated statements of
income and retained earnings, and the unaudited consolidated statements
of cash flows, of the Company and its subsidiaries included in the
Company and WPSC's quarterly reports on Form 10-Q filed with the
Commission under Section 13 of the 1934 Act (the "Form 10-Q's")
subsequent to the Form 10-K, (B) a reading of the latest available
unaudited financial statements of the Company and its subsidiaries, (C)
a reading of the minutes of the Annual Meeting of Shareholders and the
latest minutes of meetings of the Board of Directors of the Company as
set forth in the minute books for the current year, and (D) inquiries
of the officers of the Company who have responsibility for financial
and accounting matters (it being understood that the foregoing
procedures do not constitute an audit made in accordance with generally
accepted accounting procedures and would not necessarily reveal matters
of significance with respect to the comments made in such letter, and
accordingly that Arthur Andersen LLP makes no representation as to the
sufficiency of such procedures for the purposes of the several
Underwriters), nothing has come to their attention which caused them to
believe that (1) any material modifications should be made to the
unaudited consolidated financial statements included in the Form 10-Q's
for them to be in conformity with generally accepted accounting
procedures; (2) the unaudited consolidated financial statements
included in the Form 10-Q's do not comply as to form in all material
respects with the applicable accounting requirements of the 1934 Act
and the 1934 Act Regulations, as they apply to Form 10-Q, or (3) at the
date of the latest available consolidated financial statements and at a
specified date not more than three business days
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prior to the date of such letter, there was any change in the
consolidated capital stock or increase in the consolidated long-term
debt of the Company and its subsidiaries or any decrease in the
consolidated net assets or shareholders' equity of the Company, in each
case as compared with the amounts shown in the most recent consolidated
balance sheet of the Company incorporated by reference into the
Registration Statement and the Final Prospectus or, during the period
from the date of such balance sheet to a specified date not more than
three business days prior to the date of such letter, based upon
inquiries of the appropriate officers of the Company, there were any
decreases, as compared with the corresponding period in the preceding
year, in consolidated operating revenues, consolidated net income or
earnings per share, except in each case as set forth in or contemplated
by the Registration Statement and the Final Prospectus or except for
such exceptions enumerated in such letter as shall have been agreed to
by the Underwriters and the Company; and
(iv) in addition to the audits referred to in their report
appearing in the Form 10-K incorporated by reference in the
Registration Statement and the Final Prospectus, and the limited
procedures referred to in clause (iii) above, they have carried out
certain other specified procedures, not constituting an audit, with
respect to certain amounts, percentages, and financial information
which are included or incorporated by reference in the Registration
Statement and the Final Prospectus and which are specified by the
Underwriters, and have found such amounts, percentages, and financial
information to be in agreement with the relevant accounting, financial
and other records of the Company and its subsidiaries identified in
such letter.
(f) Bring-down Comfort Letter. At Closing Time, the
Underwriters shall have received from Arthur Andersen LLP a letter, dated as of
Closing Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (e) of this Section, except that the specified
date referred to shall be a date not more than three calendar days prior to
Closing Time.
(g) Maintenance of Rating. In the case of an offering of Debt
Securities, since the date of this Agreement, there shall not have occurred a
downgrading in the rating assigned to the Debt Securities or any of the other
securities of the Company or WPSC by S&P or Moody's, and neither S&P or Moody's
shall have publicly announced that it has under surveillance or review its
rating of the Debt Securities or any of the Company's or WPSC's other
securities, and the Company shall have delivered to the Underwriters a letter,
dated the Closing Date, from each such Rating Agency confirming the rating of
the Debt Securities as of the Closing Date.
(h) Execution of Agreements. In the case of an offering of
Debt Securities, the applicable Indenture shall have been executed and
delivered, in each case in a form reasonably satisfactory to the Underwriters.
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(i) Approval of Listing. In the case of an offering of Common
Stock or any Debt Securities which are to be listed on The New York Stock
Exchange or any other national securities exchange, the Securities shall have
been duly listed, subject to official notice of issuance, on The New York Stock
Exchange or such other national securities exchange.
(j) Additional Documents. At Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as they
may require for the purpose of enabling them to pass upon the issuance and sale
of the Securities as herein contemplated, or in order to evidence the accuracy
of any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Securities as herein contemplated
shall be satisfactory in form and substance to the Underwriters and their
counsel.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representatives, on behalf of the Underwriters, by notice to the Company
at any time at or prior to Closing Time, and such termination shall be without
liability of any party to any other party, except as provided in Section 4 and
except that Sections 1, 6, 7 and 8 shall survive any such termination and remain
in full force and effect.
SECTION 6. INDEMNIFICATION
(a) Indemnification of Underwriters. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto) or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact included in any Preliminary Prospectus or the Final
Prospectus (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that any such settlement is effected with the written consent of the
Company; and
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(iii) against any and all expense whatsoever (including the
fees and disbursements of counsel chosen by the Representatives)
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, at the time that such expense is incurred, to
the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use in the Registration
Statement (or any amendment or supplement thereto) or the Basic Prospectus, any
Preliminary Prospectus or the Final Prospectus (or any amendment or supplement
thereto); and provided further, that the foregoing indemnity with respect to any
untrue statement or omission from a Preliminary Prospectus shall not inure to
the benefit of any Underwriter (or any person controlling such Underwriter) from
whom the person asserting such loss, liability, claim, damage or expense
purchased any of the Securities that are the subject thereof if the Company
shall sustain the burden of proving that: (i) the untrue statement or omission
contained in the Preliminary Prospectus (excluding documents incorporated by
reference) was corrected, (ii) such person was not sent or given a copy of the
Final Prospectus (excluding documents incorporated by reference) which corrected
the untrue statement or omission at or prior to the written confirmation of the
sale of such Securities to such person if required by applicable law, and (iii)
the Company satisfied its obligation to provide a sufficient number of copies of
the Final Prospectus to such Underwriter.
(b) Indemnification of Company, Officers and Directors. Each
Underwriter severally agrees to indemnify and hold harmless the Company, the
Company's directors, each of the Company's officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any Preliminary Prospectus
or the Final Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the Company by such
Underwriter through the Representatives expressly for use in the Registration
Statement (or any amendment thereto) or in such Preliminary Prospectus or the
Final Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified
party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to
the extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from
20
<PAGE>
any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by the Representatives,
and, in the case of parties indemnified pursuant to Section 6(b) above, counsel
to the indemnified parties shall be selected by the Company, in each case
reasonably acceptable to the indemnifying party. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim, and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party.
SECTION 7. CONTRIBUTION. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the Underwriters on the
other hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company
and the total underwriting commission received by the Underwriters, in each case
as set forth on the cover of the Final Prospectus, bear to the aggregate initial
public offering price of the Securities as set forth on such cover.
21
<PAGE>
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company,
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Securities set forth opposite their respective names
in Schedule A hereto and not joint.
SECTION 8. REPRESENTATIONS AND WARRANTIES TO SURVIVE DELIVERY. All
representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries submitted
pursuant hereto shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or controlling
person, or by or on behalf of the Company, and shall survive delivery of the
Securities to the Underwriters.
22
<PAGE>
SECTION 9. TERMINATION OF AGREEMENT
(a) Termination; General. The Representatives may terminate
this Agreement, by notice to the Company, at any time at or prior to the Closing
Time (i) if there has been, since the time of execution of this Agreement or
since the respective dates as of which information is given in the Final
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States, any
outbreak of hostilities or escalation thereof or other calamity or crisis or any
change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Representatives,
impracticable to market the Securities or to enforce contracts for the sale of
the Securities, or (iii) if trading in any securities of the Company has been
suspended or materially limited by the Commission or the New York Stock
Exchange, or if trading generally on the New York Stock Exchange has been
suspended or materially limited, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any governmental authority, or if
a banking moratorium has been declared by either Federal, New York or
Wisconsin authorities, or (iv) in the case of Debt Securities, if the ratings
assigned by any Rating Agency to the Debt Securities or any other debt
securities of the Company shall have been lowered since the date of this
Agreement or if any such Rating Agency shall have publicly announced that
it has placed under surveillance or review, with possible negative implications,
its rating of the Debt Securities or any other debt securities of the Company.
(b) Liabilities. If this Agreement is terminated pursuant to
this Section, such termination shall be without liability of any party to any
other party except as provided in Section 4 hereof, and provided further that
Sections 1, 6, 7 and 8 shall survive such termination and remain in full force
and effect.
SECTION 10. DEFAULT BY ONE OR MORE UNDERWRITERS. If one or more of the
Underwriters shall fail at Closing Time to purchase the Securities (other than
for some reason to justify, in accordance with the provisions hereof, the
cancellation or termination of its or their obligations hereunder) which it or
they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
23
<PAGE>
(a) if the number of Defaulted Securities does not exceed 10%
of the number of Securities to be purchased on such date, each of the
non-defaulting Underwriters shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
number of Securities to be purchased on such date, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Representatives or the Company shall have the
right to postpone the Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Final
Prospectus or in any other documents or arrangements.
SECTION 11. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to _____________ at ____________________________
, attention ___________, and notices to the Company shall be directed to it at
700 North Adams Street, P. O. Box 19001, Green Bay, Wisconsin 54307, attention
Ralph G. Baeten.
SECTION 12. PARTIES. This Agreement shall inure to the benefit of and
be binding upon the Underwriters and the Company, and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company, and their respective successors and the
controlling persons, officers and directors referred to in Sections 6 and 7 and
their heirs and legal representatives, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision herein contained.
This Agreement and all conditions and provisions hereof are intended to be for
the sole and exclusive benefit of the Underwriters and the Company and their
respective successors, and said controlling persons, officers and directors and
their heirs and legal representatives, and for the benefit of no other person,
firm or corporation. No purchaser of Securities from any Underwriter shall be
deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO CENTRAL TIME.
24
<PAGE>
SECTION 14. EFFECT OF HEADINGS. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
SECTION 15. SEVERABILITY OF PROVISIONS. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
25
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters and the Company in accordance with its terms.
Very truly yours,
WPS RESOURCES CORPORATION
By:
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
[NAME OF UNDERWRITERS
OR REPRESENTATIVES]
By: [NAME OF REPRESENTATIVE]
By:
Name:
Title:
26
<PAGE>
SCHEDULE A
SENIOR SECURITIES
Underwriting Agreement dated
Trustee:
Title, Purchase Price and Description of Debt Securities:
Title:
Principal amount:
Interest rate:
Interest payable:
Commencing:
Date of maturity:
Public offering price:
Per Debt Security:
Total:
Underwriting Commission:
Per Debt Security:
Total:
Form of payment:
Form of Securities:
Redemption provisions:
Sinking fund requirements:
Lockup provisions:
Other provisions:
Other Provisions of or Amendments to Underwriting Agreement:
Securities Closing Date, Time and Location:
<PAGE>
Modification of items to be covered by the letter from Arthur Andersen LLP
delivered pursuant to Section 6(d) at the Closing Date:
SCHEDULE A
SUBORDINATED SECURITIES
Underwriting Agreement dated
Trustee:
Title, Purchase Price and Description of Debt Securities:
Title:
Principal amount:
Interest rate:
Interest payable:
Commencing:
Date of maturity:
Public offering price:
Per Debt Security:
Total:
Underwriting Commission:
Per Debt Security:
Total:
Form of payment:
Form of Securities:
Redemption provisions:
Sinking fund requirements:
Lockup provisions:
Other provisions:
Other Provisions of or Amendments to Underwriting Agreement:
<PAGE>
Securities Closing Date, Time and Location:
Modification of items to be covered by the letter from Arthur Andersen LLP
delivered pursuant to Section 6(d) at the Closing Date:
<PAGE>
SCHEDULE A
COMMON STOCK
Underwriting Agreement dated
Number of shares:
Public Offering Price:
Per Share:
Total:
Underwriting Commission:
Per Share:
Total:
Over-allotment option:
Other Provisions of or Amendments to Underwriting Agreement:
Purchased Securities Closing Date, Time and Location:
Modification of items to be covered by the letter from Arthur Andersen LLP
delivered pursuant to Section 6(d) at the Closing Date:
<PAGE>
SCHEDULE B
SENIOR SECURITIES
Name of Underwriters Amount
[Insert Name]...................................................
[Insert Name]...................................................
[Insert Name]...................................................
Total $
<PAGE>
SCHEDULE B
SUBORDINATED SECURITIES
Name of Underwriters Amount
[Insert Name]....................................................
[Insert Name]....................................................
[Insert Name]....................................................
Total $
<PAGE>
SCHEDULE B
COMMON STOCK
Name of Underwriters No. of Shares
[Insert Name]..................................................
[Insert Name]..................................................
[Insert Name]..................................................
Total
<PAGE>
EXHIBIT A
Form of Opinion of Company's Counsel
(To Be Delivered pursuant to Section 5(b))
(i) The Company has been duly incorporated and is validly existing as a
corporation under the laws of the State of Wisconsin; based solely on a
certificate of the Department of Financial Institutions of the State of
Wisconsin, the Company has filed its most recent required annual report and, as
of the applicable date specified in such certificates, (a) the Company has not
filed articles of dissolution with the Department of Financial Institutions of
the State of Wisconsin, and (b) the Department of Financial Institutions of the
State of Wisconsin has not commenced proceedings for the dissolution of the
Company and has made no determination that grounds exist for such action against
the Company.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Final Prospectus.
(iii) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which its
ownership or lease of substantial properties or the conduct of its business
requires such qualification and in which the failure of the Company to be so
qualified and in good standing would have a Material Adverse Effect.
(iv) Each Significant Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation under the laws of the
jurisdiction of its incorporation, has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus.
(v) In the case of an offering of Common Stock, the authorized, issued
and outstanding capital stock of the Company is as set forth in the Final
Prospectus under the caption "Capitalization" (except for subsequent issuances,
if any, pursuant to employee benefit plans referred to in the Final Prospectus);
all of the issued and outstanding shares of Common Stock have been duly
authorized and validly issued and are fully paid and nonassessable, except with
respect to wage claims of employees of the Company as provided in Section
180.0622(2)(b) of the Wisconsin Business Corporation Law, as such statutory
provision has been judicially interpreted; the certificate for each outstanding
share of Common Stock also represents one Right per share (if the Rights are
then in existence), and (if the Rights Agreement is then in effect) the
outstanding Rights have been duly authorized and validly issued under the Rights
Agreement and are entitled to the benefits thereof.
(vi) All of the issued and outstanding common stock of each Significant
Subsidiary has been duly authorized and validly issued and is fully paid and
non-assessable, except with respect to wage claims of employees of the Company
and each Significant Subsidiary as provided in Section 180.0622(2)(b) of the
Wisconsin Business Corporation Law, as such statutory provision
<PAGE>
has been judicially interpreted; the Company is the owner of record of all of
the common stock of each Significant Subsidiary, directly or through
subsidiaries.
(vii) This Agreement has been duly and validly authorized, executed and
delivered by the Company and constitutes the legal, valid and binding obligation
of the Company, enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting the
enforcement of creditors' rights generally or by general equity principles and
except that no opinion as to enforceability need be expressed as to rights to
indemnification and contribution provided in Section 6 and 7 of this Agreement
or clauses concerning agreements to agree.
(viii) In the case of an offering of Common Stock, the shares of Common
Stock being delivered and paid for at the Closing Date have been duly
authorized, validly issued and are fully paid and nonassessable; and the related
Rights (if the Rights Agreement is then in effect) have been duly authorized and
validly issued under the Rights Agreement and are entitled to the benefits
thereof; and neither the issuance of the shares of Common Stock nor the issuance
of the related Rights is subject to preemptive rights.
(ix) In the case of an offering of Senior Securities, the Senior
Indenture has been duly and validly authorized, executed and delivered by the
Company; the Senior Indenture has been duly qualified under the 1939 Act; and,
assuming due authorization, execution and delivery by the Senior Trustee, the
Senior Indenture constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by the Bankruptcy Exceptions.
(x) In the case of an offering of Senior Securities, the Senior
Securities have been duly and validly authorized by the Company and, when
executed by the proper officers of the Company, and authenticated in accordance
with the provisions of the Senior Indenture and delivered to and paid for by the
Underwriters pursuant to this Agreement, will in each case constitute valid and
binding obligations of the Company, entitled to the benefits of the Senior
Indenture and enforceable against the Company in accordance with their terms,
except as enforcement thereof may be limited by the Bankruptcy Exceptions; the
Senior Securities are in the form contemplated by the Senior Indenture.
(xi) In the case of an offering of Subordinated Securities, the
Subordinated Indenture has been duly and validly authorized, executed and
delivered by the Company; the Subordinated Indenture has been duly qualified
under the 1939 Act; and, assuming due authorization, execution and delivery by
the Subordinated Trustee, the Subordinated Indenture constitutes a valid and
binding agreement of the Company, enforceable against the Company in accordance
with its terms, except as enforcement thereof may be limited by the Bankruptcy
Exceptions.
(xii) In the case of an offering of Subordinated Securities, the
Subordinated Securities have been duly and validly authorized by the Company
and, when executed by the proper officers of the Company, and authenticated in
accordance with the provisions of the Subordinated
<PAGE>
Indenture and delivered to and paid for by the Underwriters pursuant to this
Agreement, will constitute valid and binding obligations of the Company entitled
to the benefits of the Subordinated Indenture and enforceable against the
Company in accordance with their terms, except as enforcement thereof may be
limited by the Bankruptcy Exceptions; the Subordinated Securities are in the
form contemplated by the Subordinated Indenture.
(xiii) The Securities (including the Rights) and, in the case of an
offering of Debt Securities, the applicable Indenture, conform in all material
respects to the respective statements relating thereto contained in the Final
Prospectus and the Registration Statement.
(xiv) The Registration Statement is effective under the 1933 Act and,
to the best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued under the 1933 Act
or proceedings therefor initiated or threatened by the SEC.
(xv) The Registration Statement, on its effective date, and the Final
Prospectus, as of the date hereof (other than in each case financial statements
and other financial or statistical data included or incorporated by reference
therein and the Form T-1, as to which no opinion need be rendered) complied or
comply as to form in all material respects with the requirements of the 1933
Act, the 1933 Act Regulations, the 1939 Act, and the 1939 Act Regulations.
(xvi) To the best of such counsel's knowledge, there are no contracts,
indentures, mortgages, loan agreements, notes, leases or other instruments or
documents required to be described or referred to in the Registration Statement
and the Final Prospectus or to be filed as exhibits to the Registration
Statement other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto.
(xvii) Each document incorporated by reference into the Registration
Statement or the Final Prospectus complied as to form, when filed, in all
material respects with the 1934 Act and the 1934 Act Regulations.
(xviii) To the best of such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened which are required to be
disclosed in the Prospectus, other than those that are disclosed therein.
(xix) To the best of such counsel's knowledge and information, neither
the Company nor any Significant Subsidiary is in violation of its articles of
incorporation or by-laws or in breach or default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in the applicable Indenture, if any, or any other material contract,
indenture, mortgage, loan agreement, note, lease or other instrument to which
the Company or any Significant Subsidiary is a party or by which it or any of
them or their properties may be bound.
(xx) No filing, consent, approval, authorization, order, or decree of
any court or governmental authority or agency is required for the consummation
by the Company of the transactions contemplated by this Agreement, except (A)
such as have been obtained under the
<PAGE>
1933 Act, the 1933 Act Regulations, the 1939 Act or the 1939 Act Regulations,
and (B) such as may be required under state securities or blue sky laws.
(xxi) To the best of such counsel's knowledge and information, The
execution and delivery of this Agreement and, in the case of an offering of Debt
Securities, the applicable Indenture, the issuance, sale and delivery by the
Company of the Securities, and the compliance by the Company with the provisions
of this Agreement and, in the case of an offering of Debt Securities, the
provisions of the applicable Indenture and Debt Securities do not and will not
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, the articles of incorporation or by-laws of the
Company, any material contract, indenture, mortgage, loan agreement, note, lease
or other agreement or instrument to which the Company or any Significant
Subsidiary is a party, or by which it or any of them is bound or to which any of
their properties may be subject, or result in the violation of any law, order,
rule, administrative regulation or administrative or court decree applicable to
the Company or any Significant Subsidiary of any court or of any Federal or
state regulatory body or administrative agency or other governmental body having
jurisdiction over the Company or any Significant Subsidiary or their respective
properties; there are no proceedings, at law or in equity or before any
governmental agency or body, pending, or to the knowledge of the Company
threatened, which affect or may affect any of the transactions contemplated by
this Agreement; and the Company has full power and lawful authority to
authorize, issue and sell the Securities on the terms and conditions herein set
forth.
(xxii) The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, and is not required to be registered
thereunder.
(xxiii) The Company and its Subsidiaries have statutory authority,
franchises, permits, easements and consents adequate to conduct the businesses
in which they are respectively engaged without legal restrictions that would
materially affect their ability to so conduct such business.
(xxiv) In the case of an offering of Common Stock or Debt Securities
which, by their terms, are to be listed on the New York Stock Exchange, the
shares of Common Stock offered and sold under the Registration Statement or such
Debt Securities have been approved for listing on the New York Stock Exchange.
In giving such opinion, such counsel shall additionally state that
nothing has come to its attention that would lead it to believe that the
Registration Statement, as of its effective date and the Closing Date, contained
an untrue statement of material fact or omitted to state a material fact
necessary to be stated therein in order to make the statements therein not
misleading, or that the Final Prospectus, as of its issue date and the Closing
Date, contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. Such counsel need
not render an opinion with respect to financial statements and other financial
or statistical data included or incorporated by reference in the Registration
Statement or the Final Prospectus or as to any Form T-1.
Exhibit (1)(b)
WPS RESOURCES CORPORATION
$______________
Medium-Term Notes Due
One Year or More From Date of Issue
DISTRIBUTION AGREEMENT
_____________, 1999
[Agent Addresses]
Ladies and Gentlemen:
WPS Resources Corporation, a Wisconsin corporation (the "Company"),
confirms its agreement with each of you with respect to the issue from time to
time by the Company of up to $____________ in aggregate initial offering price
of its fixed-rate medium-term notes due one year or more from the date of issue
(the "Notes"). The Notes will be issued pursuant to the terms and conditions of
an Indenture, dated as of October 1, 1999 (the "Base Indenture"), between the
Company and Firstar Bank, National Association, a national banking association
organized under the laws of the United States, as trustee (the "Trustee"), as
supplemented by the First Supplemental Indenture thereto, to be dated _________,
______, between the Company and the trustee (the "Supplemental Indenture and,
together with the Base Indenture and any other amendments or supplements
thereto, the "Indenture").
This Distribution Agreement (this "Agreement") provides both for the
sale of Notes by the Company (i) directly to purchasers, in which case each of
you will act as an agent of the Company in soliciting Note purchasers (herein
sometimes referred to as "Agency Transactions"), and (ii) as may from time to
time be agreed to by you and the Company, to any of you as principal for resale
to purchasers (herein sometimes referred to as "Principal Transactions"). In
addition, this Agreement permits the Company to sell Notes directly to investors
on its own behalf in transactions in which none of you has acted as an agent of
the Company in soliciting such purchases. This Agreement shall not be construed
to create either an obligation on the part of the Company to sell any Notes or
an obligation by you to purchase Notes as a principal.
<PAGE>
The Company has filed with the Securities and Exchange Commission (the
"SEC") a registration statement on Form S-3 (No. 333-_________) under the
Securities Act of 1933, as amended (the "1933 Act"), relating to the offer and
sale, from time to time, of up to $400,000,000, in the aggregate, of the
Company's senior debt securities, subordinated debt securities, and common
stock, together with the associated common stock purchase rights (the
"Registered Securities"), in accordance with Rule 415 of the rules and
regulations of the SEC under the 1933 Act (the "1933 Regulations"), including a
prospectus relating to the Registered Securities, and has filed, or proposes to
file, pursuant to Rule 424(b) a prospectus supplement and one or more pricing
supplements relating to the Notes and the plan of distribution thereof. Such
registration statement, including the exhibits thereto, as from time to time
amended or supplemented, is herein referred to as the "Registration Statement,"
and the prospectus constituting a part of the Registration Statement, together
with any prospectus supplement and pricing supplements relating to the Notes
that are subsequently filed with the SEC pursuant to Rule 424(b), is herein
referred to as the "Prospectus;" provided, however, that if any revised
prospectus shall be provided to the Agents by the Company for use in connection
with the offering of the Notes which is not required to be filed by the Company
with the SEC pursuant to Rule 424(b) of the 1933 Act Regulations, the term
"Prospectus" shall also refer to such revised prospectus from and after the time
it is first provided to an Agent for such use.
All references in this Agreement to the Registration Statement or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under the
Securities Act of 1934, as amended (the "1934 Act"), on or before the date of
this Agreement or the issue date of the Prospectus, as the case may be (the
"Incorporated Documents"). All references in this Agreement to financial
statements and schedules and other information that is "contained," "included,"
or "stated" in the Registration Statement or Prospectus (and all other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information that are, or are deemed
to be, incorporated by reference in the Registration Statement or the
Prospectus, as the case may be. All references in this Agreement to "amendments"
or "supplements" to the Registration Statement or the Prospectus shall be deemed
to refer to and include the filing of any Incorporated Document after the time
of execution of this Agreement; provided, however, that any supplement to the
Prospectus filed with the SEC pursuant to Rule 424(b) of the 1933 Act
Regulations with respect to an offering of Registered Securities, other than the
Notes, shall not be deemed to be a supplement to, or a part of, the Prospectus
for purposes of this Agreement.
For purposes of this Agreement, all references to the Registration
Statement or Prospectus or any amendment or supplement thereto shall be deemed
to include the copy filed with the SEC pursuant to its Electronic Data
Gathering, Analysis and Retrieval System ("EDGAR").
SECTION 1. Appointment as Agents.
(a) Appointment of Agents. Subject to the terms and conditions stated
herein, the Company hereby appoints each of you as the agent of the Company
(each an "Agent" and, collectively, the "Agents") for the purpose of soliciting
purchases of the Notes from the Company
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by others and agrees that, except as otherwise contemplated herein, whenever the
Company determines to sell Notes directly to an Agent as principal for resale to
others, it will enter into aTerms Agreement (as hereafter defined) relating to
such sale in accordance with the provisions of Section 3(b) hereof. Each Agent
is authorized to appoint sub-agents or to engage the services of any other
broker or dealer in connection with the offer or sale of the Notes.
The Company will not engage any other person or party to solicit
purchases of the Notes (a "New Agent") , except that the Company may amend this
Agreement to appoint a New Agent as an additional Agent hereunder on the same
terms and conditions (including, without limitation, commission rates) as
provided herein for the Agents, provided that the Company shall have given the
Agents prior notice of such appointment.
The Company reserves the right to sell Notes directly to investors on
its own behalf and to contact and solicit potential investors in connection
therewith and, in the case of any such sale not resulting from a solicitation
made by any Agent, no commission will be payable hereunder to any Agent with
respect to such sale. The Company agrees that, during the period in which the
Agents are acting as the Company's agents hereunder, the Company will not
contact or solicit potential investors introduced to the Company by an Agent to
purchase the Notes.
(b) Commercially Reasonable Efforts Solicitations; Right to Reject
Offers. Upon receipt of instructions from the Company, each Agent will use
commercially reasonable efforts to solicit purchases of such principal amount of
the Notes as the Company and such Agent shall agree upon from time to time
during the term of this Agreement, it being understood that the Company shall
not approve the solicitation of purchases of Notes in excess of the amount which
shall be authorized by the Company from time to time or the amount of the
Registered Securities remaining available for issuance under the Registration
Statement. The Agents will have no responsibility for maintaining records with
respect to the aggregate principal amount of Notes sold or otherwise monitoring
the availability of Notes for sale under the Registration Statement. Each Agent
will communicate to the Company, orally or in writing, each offer to purchase
Notes, other than those offers rejected by such Agent. Each Agent shall have the
right, in its discretion reasonably exercised, to reject any proposed purchase
of Notes, in whole or in part, and any such rejection shall not be deemed a
breach of such Agent's agreement contained herein. The Company may accept or
reject any proposed purchase of the Notes, in whole or in part.
(c) Solicitations as Agent; Purchases as Principal. In soliciting
purchases of the Notes on behalf of the Company, each Agent shall act solely as
agent for the Company and not as principal. Each Agent shall make reasonable
efforts to assist the Company in obtaining performance by each purchaser whose
offer to purchase Notes has been solicited by such Agent and accepted by the
Company. Such Agent shall not have any liability to the Company in the event any
such purchase is not consummated for any reason. The Agents shall not have any
obligation to purchase Notes from the Company as principal, but each Agent may
agree from time to time to purchase Notes as principal. Any such purchase of
Notes by an Agent as principal shall be made pursuant to a Terms Agreement in
accordance with Section 3(b) hereof.
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(d) Reliance. The Company and each of the Agents agree that any Notes
the placement of which that Agent arranges shall be placed by that Agent, and
any Notes purchased by any of the Agents shall be purchased by such Agent, in
reliance on the representations, warranties, covenants and agreements of the
Company contained herein and on the terms and conditions and in the manner
provided herein.
SECTION 2. Representations and Warranties.
(a) The Company represents and warrants to, and agrees with, each
Agent, as of the date hereof, as of the date of each acceptance by the Company
of an offer for the purchase of Notes (whether in an Agency Transaction or in a
Principal Transaction), as of the date of each delivery of Notes (whether in an
Agency Transaction or in a Principal Transaction) (the date of each such
delivery to an Agent in a Principal Transaction being hereinafter referred to as
a "Settlement Date"), and as of any time that the Registration Statement or the
Prospectus shall be amended or supplemented (each of the times referenced above
being referred to herein as a "Representation Date") as follows:
(i) Due Incorporation and Qualification. The Company has been duly
incorporated and is validly existing as a corporation under the laws of the
State of Wisconsin with power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and Prospectus; the Company has not filed Articles of Dissolution with
the Department of Financial Institutions of the State of Wisconsin, and no
grounds exist for the Department of Financial Institutions of the State of
Wisconsin to dissolve the Company administratively pursuant to the provisions of
the Wisconsin Business Corporation Law; the Company is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which its ownership or lease of substantial properties or the
conduct of its business requires such qualification, except where the failure to
so qualify and be in good standing would not have a material adverse effect on
the condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as one
enterprise.
(ii) Subsidiaries. Each subsidiary of the Company which is a
significant subsidiary (each a "Significant Subsidiary"), as defined in Rule 405
of Regulation C of the rules and regulations promulgated under the 1933 Act (the
"1933 Act Regulations"), has been duly incorporated and is validly existing as a
corporation under the laws of the jurisdiction of its incorporation, and has
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and Prospectus;
no Significant Subsidiary which is incorporated under the laws of the State of
Wisconsin has filed Articles of Dissolution with the Department of Financial
Institutions of the State of Wisconsin, and no grounds exist for the Department
of Financial Institutions of the State of Wisconsin to dissolve any such
Significant Subsidiary administratively pursuant to the provisions of the
Wisconsin Business Corporation Law; each Significant Subsidiary is duly
qualified as a foreign corporation to transact business and is in
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good standing in each jurisdiction in which its ownership or lease of
substantial properties or the conduct of its business requires such
qualification, except where the failure to so qualify and be in good standing
would not have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company and its subsidiaries, considered as one enterprise.
(iii) Ownership of Company and Significant Subsidiaries. All of the
issued and outstanding capital stock of the Company and of each Significant
Subsidiary has been duly authorized and validly issued and is fully paid and
non-assessable, except with respect to wage claims of employees of the Company
and each Significant Subsidiary as provided in Section 180.0622(2)(b) of the
Wisconsin Business Corporation Law, as such statutory provision has been
judicially interpreted; the Company owns, beneficially and of record, all of the
common stock of each Significant Subsidiary, directly or through subsidiaries,
in each case free and clear of any mortgage, pledge, lien, encumbrance, claim or
equity. None of the outstanding shares of capital stock of the Significant
Subsidiaries was issued in violation of the preemptive or similar rights of any
securityholder of such subsidiary. Other than the Significant Subsidiaries, the
Company has no subsidiaries which, either individually or considered in the
aggregate as a single subsidiary, constitute a "significant subsidiary" as
defined in Rule 405 under the 1933 Act Regulations.
(iv) Registration Statement and Prospectus.
(A) The Company meets the requirements for use of Form S-3
under the 1933 Act and the 1933 Act Regulations. The Registration Statement has
become effective under the 1933 Act and the 1933 Act Regulations, and no stop
order suspending the effectiveness of the Registration Statement has been
issued, and no proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company, threatened by the Commission. The Company
has complied with any request on the part of the SEC for additional information.
(B) The Registration Statement, at the Effective Date (as
herein defined), complied, and as of the applicable Representation Date will
comply, in all material respects with the requirements of the 1933 Act, the 1933
Act Regulations, the Trust Indenture Act of 1939, as amended (the "1939 Act")
and the rules and regulations of the SEC promulgated thereunder (the "1939 Act
Regulations"). The Registration Statement, at the Effective Date, did not, and
as of each Representation Date, will not, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The Prospectus, as of
the date hereof, does not, and as of each Representation Date, will not, contain
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the Company in
writing by the Agents expressly for use in the Registration Statement or
Prospectus or to any statements in or omissions from the Statement of
Eligibility of the Trustee on Form T-1 (the "Form T-1"). As used herein, the
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term "Effective Date" means the later of (i) the date that the Registration
Statement or the most recent post-effective amendment thereto was or is declared
effective by the SEC under the 1933 Act and (ii) the date that the Company's
Annual Report on Form 10-K for its most recently completed fiscal year is filed
with the SEC under the 1934 Act.
(C) Each Prospectus delivered to the Agents for use in connection with
the offering of the Notes was or will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T under the 1933 Act Regulations.
(v) Incorporated Documents. The Incorporated Documents, at the time
they were or hereafter are filed with the SEC, complied and will comply in all
material respects with the requirements of the 1934 Act and the rules and
regulations promulgated thereunder (the "1934 Act Regulations"), and, when read
together with the other information in the Registration Statement and
Prospectus, did not and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were or are made, not misleading.
(vi) Accountants. Arthur Andersen LLP, the accountants who audited the
annual financial statements included or incorporated by reference in the
Registration Statement and Prospectus (the "Accountants"), are independent
public accountants with respect to the Company and its subsidiaries within the
meaning of the 1933 Act and the 1933 Act Regulations.
(vii) Financial Statements. The financial statements and any supporting
schedules of the Company and its consolidated subsidiaries included or
incorporated by reference in the Registration Statement and the Prospectus
present fairly the financial position of the Company and its consolidated
subsidiaries as of the dates indicated and the results of operations,
stockholders' equity and cash flows of the Company and its consolidated
subsidiaries for the periods specified. Such financial statements have been
prepared in conformity with generally accepted accounting principles which have
been consistently applied in all material respects throughout the periods
involved, except as may otherwise be stated therein and except to the extent
that certain information normally disclosed in financial statements and related
notes may be omitted or condensed in the quarterly financial statements of the
Company and its consolidated subsidiaries if done so pursuant to the rules and
regulations of the SEC. The Company's ratios of earnings to fixed charges
included in the Prospectus under the caption "Ratios of Earnings to Fixed
Charges" and in Exhibit 12 to the Registration Statement have been calculated in
compliance with Item 503(d) of Regulation S-K of the Commission.
(viii) Authorization and Validity of this Agreement, the Base Indenture
and the Notes. This Agreement has been duly authorized, executed and delivered
by the Company and, upon execution and delivery by the Agents, will constitute
the legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other laws
relating
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<PAGE>
to or affecting the enforcement of creditors' rights generally or by general
equity principles. The Base Indenture has been duly authorized, executed and
delivered by the Company and the Supplemental Indenture has been duly authorized
by the Company, and the Base Indenture constitutes, and upon execution and
delivery thereof, the Supplemental Indenture will constitute, the legal, valid
and obligation of the Company, enforceable against the Company in accordance
with their terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws relating to or affecting
the enforcement of creditors' rights generally or by general equity principles.
The Indenture has been duly qualified under the 1939 Act; the Indenture is
substantially in the form filed or incorporated by reference, as the case may
be, as an exhibit to the Registration Statement and conforms in all material
respects to all statements relating thereto contained in the Prospectus. The
Notes have been duly and validly authorized for issuance, offer and sale
pursuant to this Agreement and, when issued, authenticated and delivered
pursuant to the terms of this Agreement and the Indenture against payment of the
consideration therefor specified in the Prospectus or pursuant to any Terms
Agreement, will constitute valid and legally binding obligations of the Company
enforceable against the Company in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency or other similar
laws relating to or affecting creditors' rights generally or by general equity
principles; and the Notes will be substantially in the form included or
incorporated by reference as an exhibit to the Registration Statement and will
conform in all material respects to all statements relating thereto contained in
the Prospectus.
(ix) Material Changes or Material Transactions. Since the respective
dates as of which information is given in the Registration Statement and the
Prospectus, except as may otherwise be stated or contemplated therein, (a) the
Company and its subsidiaries considered as one enterprise have not sustained any
material loss or interference with their business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, (b) there has not been any
material change in the capital stock, short-term debt or long-term debt of the
Company and its subsidiaries considered as one enterprise, except for borrowings
under existing revolving credit agreements and pursuant to the Company's
existing commercial paper and 4(2) short-term note program, in each case
consistent with past practices and the accrual of interest on long-term debt of
the Company's Employee Stock Ownership Plan that is guaranteed by Wisconsin
Public Service Corporation ("WPSC"), or any material adverse change, or any
development involving a prospective material adverse change, in the condition
(financial or other), net worth or results of operations or business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and (c)
there has not been any material transaction entered into by the Company and its
subsidiaries considered as one enterprise, other than transactions in the
ordinary course of business. The Company does not have any material contingent
obligations required to be disclosed in the Registration Statement and
Prospectus which are not disclosed therein.
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(x) No Defaults; Regulatory Compliance. Neither the Company nor any
Significant Subsidiary is in violation of its articles of incorporation or
by-laws or in breach or default in the performance or observance of any material
obligation, agreement, covenant or condition contained in the Indenture or in
any other material contract, mortgage, loan agreement, lease, note or other
instrument to which it is a party or by which it or any of them may be bound or
to which any of their properties may be subject, or any rule, order, law,
administrative regulation or administrative or court order, except to the extent
set forth in the Registration Statement and Prospectus.
(xi) No Conflicts. The execution and delivery of this Agreement, the
Base Indenture, the Supplemental Indenture, and each applicable Terms Agreement,
if any, the issuance, sale and delivery by the Company of the Notes, the
compliance by the Company with the terms of this Agreement, the Indenture, each
applicable Terms Agreement and the Notes, the consummation of the transactions
contemplated herein and therein, and the use of the proceeds from the sale of
the Notes as described in the Prospectus under the caption "Use of Proceeds" do
not and will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, the articles of incorporation or
by-laws of the Company, any material contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which the Company or
any Significant Subsidiary is a party, or by which it or any of them is bound or
to which any of their properties may be subject, or result in the violation of
any law, order, rule, administrative regulation or administrative or court
decree applicable to the Company or any Significant Subsidiary of any court or
of any Federal or state regulatory body or administrative agency or other
governmental body having jurisdiction over the Company or any Significant
Subsidiary or their respective properties; there are no proceedings, at law or
in equity or before any governmental agency or body, pending, or to the
knowledge of the Company threatened, which affect or may affect any of the
transactions contemplated by this Agreement; and the Company has full power and
lawful authority to authorize, issue and sell the Notes on the terms and
conditions herein set forth.
(xii) No Consents. No filing with, or consent, approval, authorization,
order or decree of, any court or governmental authority or agency is required
for the consummation of the transactions herein contemplated, other than such as
may be required under the 1933 Act, the 1939 Act, the 1933 Act Regulations, the
1939 Act Regulations, or state securities or blue sky laws.
(xiii) Public Utility Holding Company Act Compliance . The Company is
not currently required to register as a "holding company" under the Public
Utilities Holding Company Act of 1935, as amended.
(xiv) Legal Proceedings. Except as may be set forth in the Registration
Statement and the Prospectus, there is no action, suit, proceeding, inquiry or
investigation before or by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company, overtly threatened in
writing against or affecting, the Company or any of its subsidiaries which is
required to be disclosed in the Registration Statement or which might result in
any material adverse change in the condition, financial or otherwise, of the
Company and its subsidiaries considered as one enterprise, or in the earnings,
business affairs or business prospects of the
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Company and its subsidiaries considered as one enterprise, or which might
materially and adversely affect the properties or assets thereof or might
materially and adversely affect the consummation of this Agreement or of an
applicable Terms Agreement, if any. The aggregate of all pending legal or
governmental proceedings to which the Company or any of its subsidiaries is a
party or of which any of their respective property or assets is the subject
which are not described in the Registration Statement or the Prospectus,
including ordinary routine litigation incidental to the business, would not, if
adversely determined, result in a material adverse change in the condition,
financial or otherwise, of the Company and its subsidiaries considered as one
enterprise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise.
(xv) Exhibits. There are no contracts or other documents of the Company
or any of its subsidiaries which are required to be described in the
Registration Statement, the Prospectus, or the Incorporated Documents or to be
filed as exhibits to the Registration Statement by the 1933 Act or the 1933 Act
Regulations which have not been so described and filed as required.
(xvi) Licenses and Authorizations. The Company and its subsidiaries
possess all licenses, certificates, permits and other authorizations issued by
the appropriate federal, state or foreign regulatory authorities necessary to
conduct their respective businesses, and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the revocation
or modification of any such certificate, authorization or permit which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and its
subsidiaries considered as one enterprise, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Registration Statement and Prospectus.
(xvii) Restrictions on Dividends. The Prospectus (including the
Incorporated Documents) accurately describes the most restrictive of the
existing limitations on the payment of dividends by WPSC on the shares of common
stock of WPSC held by the Company.
(xvii) Internal Accounting Controls. The Company and each of its
subsidiaries maintains a system of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are executed in accordance
with management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(xviii) Environmental Compliance. The Company and each of its
subsidiaries are (i) in compliance with any and all applicable foreign, federal,
state and local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic
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substances or wastes, pollutants or contaminants ("Environmental Laws"), (ii)
have received and are in compliance with all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct their
respective businesses, and (iii) have not received notice of any actual or
potential liability for the investigation or remediation of any disposal or
release of hazardous or toxic substances or wastes, pollutants or contaminants,
except where such non-compliance with Environmental Laws, failure to receive
required permits, licenses or other approvals, or liability would not,
individually or in the aggregate, have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or properties
of the Company and its subsidiaries considered as one enterprise, whether or not
arising from transactions in the ordinary course of business, except as set
forth in or contemplated in the Registration Statement and Prospectus. Except as
set forth in the Registration Statement and Prospectus, neither the Company nor
any of its subsidiaries has been named as a "potentially responsible party"
under the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended, except in such instances which would not, individually or
in the aggregate, have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and its
subsidiaries considered as one enterprise.
(xix) Year 2000 Compliance. The Company, on behalf of itself and each
of its subsidiaries, has implemented, or caused to be implemented, a
comprehensive, detailed program to analyze and address the risk that the
computer hardware and software used by it may be unable to recognize and
properly execute date-sensitive functions involving certain dates prior to and
any dates after December 31, 1999, and reasonably believe that such risk will be
remedied on a timely basis without material expense, except as set forth or
contemplated in the Registration Statement and Prospectus, and will not have a
material adverse effect upon the financial condition and results of operations
of the Company and its subsidiaries considered as one enterprise.
(xx) Not Investment Company. The Company is not an "investment company
or a company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "Investment Company Act"), and
is not required to register or take any other action with respect to or under
the Investment Company Act by reason of the issuance of the Notes by the
Company.
(b) Additional Certifications. Any certificate signed by any officer of
the Company and delivered to any Agent or to counsel for such Agent in
connection with an offering of Notes by an Agent or the sale of Notes to an
Agent as principal shall be deemed a representation and warranty by the Company
to such Agent as to the matters covered thereby.
SECTION 3. Offer and Sale of the Notes.
(a) Solicitations as Agent. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, each Agent agrees, as agent of the Company, to use reasonable commercial
efforts to solicit offers to purchase the Notes from time
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to time as requested by the Company upon the terms and conditions set forth
herein and in the Prospectus. The Agents may act separately or together in
connection with any particular sale of Notes; however, the obligations of the
Agents hereunder shall, in either case, be several and not joint.
The Company reserves the right, in its sole discretion, to sell Notes
itself or to suspend solicitation of purchases of the Notes through an Agent, as
agent, commencing at any time for any period of time or permanently. As soon as
practicable upon receipt of instructions from the Company, such Agent will
forthwith suspend solicitation of purchases from the Company until such time as
the Company has advised such Agent that such solicitation may be resumed.
The Company agrees to pay the applicable Agent a commission, in the
form of a discount if funds are advanced by such Agent on behalf of a purchaser,
equal to the applicable percentage of the principal amount of each Note sold by
the Company as a result of a solicitation made by such Agent as set forth in
Schedule A hereto. An Agent may reallow any portion of the commission payable
pursuant hereto to dealers or purchasers in connection with the offer and sale
of any Notes.
The purchase price, interest rate, maturity date and other terms of the
Notes shall be agreed upon by the Company and the Agents and set forth in a
pricing supplement to the Prospectus to be prepared following each acceptance by
the Company of an offer for the purchase of Notes. All Notes sold through an
Agent as agent will be sold at 100% of their principal amount unless otherwise
agreed to by the Company and such Agent.
(b) Purchases as Principal. Each sale of Notes to an Agent as principal
shall be made in accordance with the terms of this Agreement and (unless the
Company and such Agent shall agree otherwise) pursuant to a separate agreement
which will provide for the sale of such Notes to, and the purchase and
reoffering thereof by, such Agent. Each such separate agreement (which may be an
oral agreement confirmed in writing which shall be substantially in the form of
Exhibit A hereto or in the form of an exchange of any standard form of written
telecommunication between each Agent and the Company, including an exchange by
facsimile transmission) between the Agent and the Company is herein referred to
as a "Terms Agreement." Unless the context otherwise requires, each reference
contained herein to "this Agreement" shall be deemed to include any applicable
Terms Agreement between the Company and any Agent. Each such Terms Agreement
shall be with respect to such information (as applicable) as is specified in
Exhibit A hereto.
Each Agent's commitment to purchase Notes pursuant to any Terms
Agreement or otherwise shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and shall be
subject to the terms and conditions herein set forth. Each Terms Agreement shall
specify the principal amount of Notes to be purchased by the Agent thereunder,
the price to be paid to the Company for such Notes (which, if not so specified
in a Terms Agreement, shall be at a discount equivalent to the applicable
commission set forth in Schedule A), the price to the public, the time and place
of delivery of and payment for such Notes, any provisions applicable to the
failure of any Agent (if more than one) to purchase and pay for the Notes it has
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agreed to purchase and pay for thereunder, and such other provisions (including
further terms of the Notes) as may be mutually agreed upon by the parties to the
Terms Agreement. Each Agent may utilize a selling or dealer group in connection
with the resale of the Notes purchased. Such Terms Agreement shall also specify
the requirements for the stand-off agreement, the officers' certificates,
opinion of counsel and comfort letter pursuant to Sections 4(k), 7(b), 7(c) and
7(d) hereof.
(c) Administrative Procedures. The Notes will be issued in accordance
with the administrative procedures specified in Exhibit B hereto, as such
procedures may be amended from time to time by written agreement between the
Agents and the Company (the "Administrative Procedures"). The Agents and the
Company agree to perform the respective duties and obligations specifically
provided to be performed by them in the Administrative Procedures.
(d) Delivery of Closing Documents. The documents required to be
delivered by Section 5 hereof shall be delivered at the office of Foley &
Lardner, 777 East Wisconsin Avenue, Milwaukee, Wisconsin 53202, at 9:00 a.m.,
central time, on the date hereof, or at such other time or place as the Agents
and the Company may agree.
SECTION 4. Covenants.
The Company covenants and agrees with each Agent as follows:
(a) Notice of Certain Events. The Company will notify the Agents
immediately, and confirm such notice in writing, (i) of the effectiveness of any
amendment to the Registration Statement (which shall not include the filing of
any Incorporated Document), (ii) of the receipt of any comments from the SEC
with respect to the Registration Statement or the Prospectus, (iii) of any
request by the SEC for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, (iv) of
the issuance by the SEC of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that purpose,
and v) any change in the rating assigned by any nationally recognized
statistical rating organization to the Notes or the public announcement by any
nationally recognized statistical rating organization that it has under
surveillance or review, with possible negative implications, its rating of the
Notes or the withdrawal by any nationally recognized statistical rating
organization of its rating of the Notes. The Company will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(b) Notice of Certain Proposed Filings. The Company will give the
Agents notice of its intention to file or prepare any additional registration
statement with respect to the registration of additional Notes, any amendment to
the Registration Statement (which shall not include the filing of any
Incorporated Document) or any amendment or supplement to the Prospectus by the
filing of documents pursuant to the 1933 Act, and the Company will, in each
case, including the filing of any Incorporated Document, furnish the Agents with
copies of any such amendment or supplement or other documents proposed to be
filed or prepared a reasonable time in advance of such proposed
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filing or preparation, as the case may be, and will not file any such amendment
or supplement or other documents (excluding Incorporated Documents) in a form to
which the Agents or counsel for the Agents shall reasonably object.
(c) Copies of the Registration Statement and the Prospectus. The
Company will deliver to the Agents as many signed and conformed copies of the
Registration Statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
Incorporated Documents) as the Agents may reasonably request. The Company will
furnish to the Agents as many copies of the Prospectus (as amended or
supplemented) as the Agents shall reasonably request so long as the Agents are
required to deliver a Prospectus in connection with sales or solicitations of
offers to purchase the Notes. The copies of the Registration Statement and each
amendment thereto and of the Prospectus furnished to the Agents will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(d) Preparation of Pricing Supplements. The Company will prepare, with
respect to any Notes to be sold through or to any Agent pursuant to this
Agreement, a Pricing Supplement with respect to such Notes in a form previously
approved by such Agent and will file such Pricing Supplement pursuant to Rule
424(b) under the 1933 Act not later than the close of business of the SEC on the
second business day after the date on which such Pricing Supplement is first
used.
(e) Prospectus Revisions--Material Changes. Except as otherwise
provided in subsection (m) of this Section 4, if at any time during the term of
this Agreement any event shall occur or condition exist as a result of which it
is necessary, in the reasonable opinion of counsel for the Agents or counsel for
the Company, to further amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time the Prospectus
is delivered to a purchaser, or if it shall be necessary, in the reasonable
opinion of either such counsel, to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, immediate notice shall be given, and confirmed
in writing, to the Agents to cease the solicitation of offers to purchase the
Notes in the Agents' capacity as agent and to cease sales of any Notes the
Agents may then own as principal pursuant to a Terms Agreement, and the Company
will promptly prepare and file with the SEC such amendment or supplement,
whether by filing documents pursuant to the 1934 Act, the 1933 Act or otherwise,
as may be necessary to correct such untrue statement or omission or to make the
Registration and Prospectus comply with such requirements.
(f) Prospectus Revisions--Periodic Financial Information. Except as
otherwise provided in subsection (m) of this Section 4, on the date on which
there shall be released to the general public interim financial statement
information related to the Company with respect to each of the first three
quarters of any fiscal year or preliminary financial statement information with
respect to any fiscal year, the Company shall furnish such information to each
Agent, confirmed in writing, and, if such information is required to be
described or is proposed to be described by the Company in a filing
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under the 1933 Act or the 1934 Act, shall cause the Prospectus to be amended or
supplemented, whether by a filing under the 1933 Act , the 1934 Act, or
otherwise, to include or incorporate by reference financial information with
respect thereto and corresponding information for the comparable period of the
preceding fiscal year, as well as such other information and explanations as
shall be necessary for an understanding thereof or shall be required by the 1933
Act or the 1933 Act Regulations.
(g) Prospectus Revisions--Audited Financial Information. Except as
otherwise provided in subsection (m) of this Section 4, on or prior to the date
on which there shall be released to the general public financial information
included in or derived from the audited financial statements of the Company for
the preceding fiscal year, the Company shall cause the Registration Statement
and the Prospectus to be amended, whether by the filing of documents pursuant to
the 1934 Act, the 1933 Act or otherwise, to include or incorporate by reference
such audited financial statements and the report or reports, and consent or
consents to such inclusion or incorporation by reference, of the Accountants
with respect thereto, as well as such other information and explanations as
shall be necessary for an understanding of such financial statements or as shall
be required by the 1933 Act or the 1933 Act Regulations.
(h) Earnings Statements. The Company will make generally available to
its security holders as soon as practicable, but not later than 90 days after
the close of the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 under the 1933 Act Regulations)
covering the twelve-month period beginning, in each case, not later than the
first day of the Company's fiscal quarter next following the "effective date" as
defined in such Rule 158) of the Registration Statement with respect to each
sale of Notes.
(i) Blue Sky Qualifications. The Company will endeavor, in cooperation
with the Agents, to qualify the Notes for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
the Agents may designate, and will maintain such qualifications in effect for as
long as may be required for the distribution of the Notes; provided, however,
that the Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation in any jurisdiction in which
it is not so qualified. The Company will file such statements and reports as may
be required by the laws of each jurisdiction in which the Notes have been
qualified as above provided. The Company will promptly advise each Agent of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Notes for sale in any such state or jurisdiction or the
initiating or threatening of any proceeding for such purpose.
(j) 1934 Act Filings. The Company, during the period during which the
Prospectus is required to be delivered under the 1933 Act, will file within the
time periods required by the 1934 Act and the 1934 Act Regulations all documents
required to be filed with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d)
of the 1934 Act.
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(k) Stand-Off Agreement. If required pursuant to the terms of a Terms
Agreement, between the date of such Terms Agreement and the Settlement Date with
respect to such Terms Agreement, the Company will not, without the appropriate
Agent's prior consent, offer or sell, or enter into any agreement to sell, any
debt securities (other than the Notes that are to be sold pursuant to such Terms
Agreement, bank borrowings, leases, commercial paper and short-term notes sold
pursuant to the Company's Section 4(2) program in the ordinary course of
business).
(l) Use of Proceeds. The net proceeds from the sale of the Notes will
be used by the Company as described in the Prospectus.
(m) Suspension of Certain Obligations. The Company shall not be
required to comply with the provisions of subsections (e), (f) or (g) of this
Section 4 or the provisions of subsections (b), (c), or (d) of Section 7 during
any period from the time (i) the Agents shall have suspended solicitation of
purchases of the Notes in their capacity as agents pursuant to a request from
the Company and (ii) the Agents shall not then hold any Notes as principal
purchased pursuant to a Terms Agreement, to the time the Company shall determine
that solicitation of purchases of the Notes should be resumed or shall
subsequently enter into a new Terms Agreement with any of the Agents. Prior to
instructing the Agents to resume the solicitation of offers to purchase Notes or
prior to entering into a new Terms Agreement, the Company shall be required to
comply with the provisions of subsections (b), (c) and (d) of Section 7, by
delivering or causing to be delivered the certificates, opinions or letters
which would have otherwise been required under each such subsection unless the
Agents otherwise determine in their sole discretion that such documents in
respect of prior periods need not be delivered.
(n) Condition to Agency Transactions. Any person who has agreed to
purchase Notes as the result of an offer to purchase solicited by an Agent shall
have the right to refuse to purchase and pay for such Notes if, on the related
settlement date fixed pursuant to the Administrative Procedures, (i) there has
been, since the date on which such person agreed to purchase the Notes (the
"Trade Date"), or since the respective dates as of which information is given in
the Registration Statement, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business or (ii) the rating
assigned by any nationally recognized securities rating agency to any debt
securities of the Company as of the Trade Date shall have been lowered since
that date or if any such rating agency shall have publicly announced that it has
under surveillance or review, with possible negative implications, its rating of
any debt securities of the Company.
SECTION 5. Conditions of Obligations.
The obligations of each Agent, as agent of the Company, to solicit
offers to purchase the Notes, the obligations of any purchasers of the Notes
sold through an Agent as agent, and any obligation of an Agent to purchase Notes
as principal pursuant to a Terms Agreement or otherwise will be subject to the
accuracy of the representations and warranties on the part of the Company
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herein, to the accuracy of the statements of the Company's officers made in any
certificate furnished pursuant to the provisions hereof, to the performance and
observance by the Company of all of its covenants and agreements herein
contained and to the following additional conditions precedent:
(a) Legal Opinion. On the date hereof, the Agents shall have received
the following legal opinions, dated the date hereof:
(1) Opinion of Counsel to the Company. The opinion of Foley &
Lardner, counsel to the Company, in form and substance satisfactory to
the Agents and counsel to the Agents, to the following effect:
(i) The Company has been duly incorporated and is
validly existing as a corporation under the laws of the State of
Wisconsin; based solely on a certificate of the Department of Financial
Institutions of the State of Wisconsin, the Company has filed its most
recent required annual report and, as of the applicable date specified
in such certificates, (a) the Company has not filed articles of
dissolution with the Department of Financial Institutions of the State
of Wisconsin, and (b) the Department of Financial Institutions of the
State of Wisconsin has not commenced proceedings for the dissolution of
the Company and has made no determination that grounds exist for such
action against the Company.
(ii) The Company has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Registration Statement and Prospectus.
(iii) The Company is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in
which its ownership or lease of substantial properties or the conduct
of its business requires such qualification and in which the failure of
the Company to be so qualified and in good standing would have a
material adverse effect upon the Company and its subsidiaries
considered as one-enterprise.
(iv) Each Significant Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation under the laws of
the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the Prospectus.
(v) All of the issued and outstanding common stock of each
Significant Subsidiary has been duly authorized and validly issued and
is fully paid and non-assessable, except with respect to wage claims of
employees of the Company and each Significant Subsidiary as provided in
Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as
such statutory provision has been judicially interpreted; the Company
is the owner of record of all of the common stock of each Significant
Subsidiary, directly or through subsidiaries.
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(vi) This Agreement has been duly and validly authorized,
executed and delivered by the Company and constitutes the legal, valid
and binding obligation of the Company, enforceable against the Company
in accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting the enforcement of creditors' rights
generally or by general equity principles and except that no opinion as
to enforceability need be expressed as to rights to indemnification and
contribution provided in Section 8 and 9 of this Agreement or clauses
concerning agreements to agree.
(vii) The Indenture has been duly and validly authorized,
executed and delivered by the Company and constitutes the legal, valid
and binding obligation of the Company, enforceable against the Company
in accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting the enforcement of creditors' rights
generally or by general equity principles.
(viii) The Notes are in due and proper form, have been duly
authorized for issuance, offer and sale pursuant to this Agreement and
the Indenture, and, when issued, authenticated and delivered pursuant
to the provisions of this Agreement and the Indenture and against
payment of the consideration therefor, will constitute legal, valid and
binding obligations of the Company enforceable against the Company in
accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency or other similar laws relating to or
affecting the enforcement of creditors' rights generally or by general
equity principles, and each holder of the Notes will be entitled to the
benefits provided by the Indenture.
(ix) The statements and summaries of documents in the
Prospectus under the caption "Description of Notes" and "Description of
the Debt Securities" are accurate in all material respects.
(x) The Indenture is qualified under the 1939 Act.
(xi) The Registration Statement is effective under the 1933
Act and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act or proceedings therefor initiated or
threatened by the SEC.
(xii) The Registration Statement, at the Effective Date, and
the Prospectus, as of the date hereof (other than in each case
financial statements and other financial or statistical data included
or incorporated by reference therein and the Form T-1, as to which no
opinion need be rendered) complied as to form in all material respects
with the requirements of the 1933 Act, the 1933 Act Regulations, the
1939 Act, and the 1939 Act Regulations.
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(xiii) To the best of such counsel's knowledge, there are no
contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments or documents required to be described or referred to
in the Registration Statement and Prospectus or to be filed as exhibits
to the Registration Statement other than those described or referred to
therein or filed or incorporated by reference as exhibits thereto.
(xiv) Each Incorporated Document complied as to form, when
filed, in all material respects with the 1934 Act and the 1934 Act
Regulations.
(xv) To the best of such counsel's knowledge, there are no
legal or governmental proceedings pending or threatened which are
required to be disclosed in the Prospectus, other than those that are
disclosed therein.
(xvi) To the best of such counsel's knowledge and information,
neither the Company nor any Significant Subsidiary is in violation of
its articles of incorporation or by-laws or in breach or default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in the Indenture or any other material
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any Significant Subsidiary is a
party or by which it or any of them or their properties may be bound.
(xvii) No filing with, or consent, approval, authorization,
order, or decree of any court or governmental authority or agency is
required for the consummation by the Company of the transactions
contemplated by this Agreement, except (A) such as have been obtained
under the 1933 Act, the 1933 Act Regulations, the 1939 Act or the 1939
Act Regulations, and (B) such as may be required under state securities
or blue sky laws.
(xviii) To the best of such counsel's knowledge and
information, the execution and delivery of this Agreement, the
Indenture, each Terms Agreement and the Notes, and the incurrence of
the obligations and the consummation of the transactions contemplated
herein and therein will not conflict with or constitute a breach of, or
default under, the provisions of the articles of incorporation or
by-laws of the Company or any of its Significant Subsidiaries, any
material contract, indenture, mortgage, loan agreement, note, lease or
other instrument known to such counsel and to which the Company or any
Significant Subsidiary is a party or by which it or any of them may be
bound or to which any of the property or assets of the Company or any
Significant Subsidiary is subject, or result in the creation of or
imposition of any lien, charge or encumbrance upon any assets of the
Company or any Significant Subsidiary or result in the violation of any
rule, order, law, administrative regulation or administrative or court
decree known to such counsel to be applicable to the Company or any
Significant Subsidiary of any court or governmental agency, authority
or body or any arbitrator having jurisdiction over the Company or any
Significant Subsidiary.
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(xix) The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, and is not required to be
registered thereunder.
(xx) The Company and its Subsidiaries have statutory
authority, franchises, permits, easements and consents adequate to
conduct the businesses in which they are respectively engaged without
legal restrictions that would materially affect their ability to so
conduct such business.
(xxi) The Company is not currently required to register as a
"holding company" under the Public Utilities Holding Company Act of
1935, as amended.
(2) Opinion of Counsel for the Agents. The favorable opinion
of Schiff Hardin & Waite, counsel to the Agents, with respect to
issuance and sale of the Notes, the Registration Statement, the
Prospectus and such other related matters as the Agents may reasonably
request (it being understood that such counsel may rely as to all
matters of Wisconsin law and legal conclusions based thereon upon the
opinion of counsel for the Company referred to in subsection (a)(1) of
this Section 5.
(3) In giving their opinions required by subsection (a)(1) and
(a)(2) of this Section 5, Foley & Lardner and Schiff Hardin & Waite
shall each additionally state that nothing has come to their attention
that would lead them to believe that the Registration Statement, as of
the Effective Date, contained an untrue statement of material fact or
omitted to state a material fact necessary to be stated therein in
order to make the statements therein not misleading, or that the
Prospectus, at the date hereof, or (if such opinion is being delivered
in connection with a Terms Agreement pursuant to Section 3(b) hereof)
at the date of any Terms Agreement, and at the Settlement Date with
respect thereto, as the case may be, contains any untrue statement of a
material fact or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading. Such counsel need not render an
opinion with respect to financial statements and other financial or
statistical data included or incorporated by reference in the
Registration Statement or the Prospectus or as to the Form T-1.
(b) Officer's Certificates. At the date hereof, the Agents shall have
received a certificate of the President, Chief Financial Officer, Treasurer or
Assistant Treasurer of the Company, dated as of the date hereof, to the effect
that (i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus or since the date of any applicable
Terms Agreement, there has not been any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of business, (ii) the
other representations and warranties of the Company contained in Section 2 are
true and correct with the same force and effect as though expressly made at and
as of the date of each such certificate, (iii) the Company has performed or
complied with all agreements and satisfied all conditions on its part
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to be performed or satisfied at or prior to the date of such certificate, and
(iv) no stop order suspending the effectiveness of the Registration Statement
has been issued, and no proceedings for that purpose have been initiated or, to
the knowledge of the Company, threatened by the SEC.
(c) Accountant's Letter. On the date hereof, each of the Agents shall
have received from the Accountants, in form and substance satisfactory to the
Agents, a letter dated as of the date hereof prepared in accordance with
Statement on Auditing Standards No. 72 ("SAS 72"), to the effect that:
(i) They are independent public accountants with respect to
the Company and its subsidiaries within the meaning of the 1933 Act and
the 1933 Act Regulations.
(ii) In their opinion, the consolidated financial statements
and supporting schedules of the Company and its subsidiaries examined
by them and incorporated by reference in the Registration Statement and
Prospectus comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations with respect to a registration statement on Form S-3 and
the 1934 Act and the 1934 Act Regulations.
(iii) They have performed procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in SAS No. 71, Interim Financial
Information, not constituting an audit, including a reading of the
latest available interim financial statements of the Company and its
subsidiaries, a reading of the minute books of the Company and such
subsidiaries since the end of the most recent fiscal year with respect
to which an audit report has been issued, inquiries of and discussions
with certain officials of the Company and such subsidiaries responsible
for financial and accounting matters with respect to the unaudited
consolidated financial statements included in the Registration
Statement and the Prospectus and the latest available interim unaudited
financial statements of the Company and its subsidiaries, and such
other inquiries and procedures as may be specified in such letter, and
on the basis of such inquiries and procedures nothing came to their
attention that caused them to believe that: (A) the unaudited
consolidated financial statements of the Company and its subsidiaries
included in the Registration Statement and the Prospectus do not comply
as to form in all material respects with the applicable accounting
requirements of the 1933 Act, the 1933 Act Regulations, the 1934 Act
and the 1934 Act Regulations, (B) any material modifications should be
made to said unaudited consolidated financial statements for them to be
in conformity with generally accepted accounting principles, or (C) at
a specified date not more than three days prior to the date of such
letter, there was any decrease in the capital stock or any increase in
consolidated long-term debt of the Company and its subsidiaries or any
decrease in the consolidated net assets of the Company and its
subsidiaries, in each case as compared with the amounts shown on the
most recent consolidated balance sheet of the Company and its
subsidiaries included in the Registration Statement and the Prospectus
or, during the period from the date of such balance sheet to a
specified date not more than three days prior to the date of such
letter, there were
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any decreases, as compared with the corresponding period in the
preceding year, in the consolidated operating revenues, operating
income, or net income of the Company and its subsidiaries, except in
each such case as set forth in or contemplated by the Registration
Statement and the Prospectus or except for such exceptions enumerated
in such letter as shall have been agreed to by the Agents and the
Company and for changes occasioned by the declaration or payment of
dividends on the stock of the Company or the preferred stock of its
subsidiaries or occasioned by sinking fund payments made on the debt
securities of the Company or its subsidiaries.
(iv) In addition to the examination referred to in their
report included or incorporated by reference in the Registration Statement and
the Prospectus, and the limited procedures referred to in clause (iii) above,
they have carried out certain other procedures, specified by you, not
constituting an audit, with respect to certain amounts, percentages, numerical
data and financial information which are included or incorporated by reference
in the Registration Statement and the Prospectus and which are specified by the
Agents, and have compared such amounts, percentages, numerical data, and
financial information with, and have found such items to be in agreement with,
or derived from, the relevant accounting, financial and other records of the
Company and its subsidiaries identified in such letter.
(d) Further Conditions. The ratings assigned by any nationally
recognized securities rating agency to any debt securities of the Company, if
any, as of the date of the acceptance by the Company of an offer to purchase
Notes or as of the date of an applicable Terms Agreement shall not have been
lowered since such respective dates, and no such rating agency shall have
publicly announced that it had placed such debt securities on what is commonly
termed a "watch list" for possible downgrading, and there shall not have come to
the attention of the Agents or, in the case of notes sold through the Agents as
agents, the applicable purchaser, any facts that would cause the Agents or such
purchaser to believe that the Disclosure Documents contained an untrue statement
of a material fact or omitted to state a material fact necessary in order to
make the statements therein, in light of the circumstances existing at such
time, not misleading.
(e) Other Documents. On the date hereof and on each Settlement
Date with respect to any applicable Terms Agreement, counsel for the Agents
shall have been furnished with such documents and opinions as such counsel may
reasonably require for the purpose of enabling such counsel to pass upon the
issuance and sale of Notes as herein contemplated and related proceedings, or in
order to evidence the accuracy and completeness of any of the representations
and warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company in connection with the issuance and
sale of Notes as herein contemplated shall be satisfactory in form and substance
to the Agents and to counsel for the Agents.
If any condition specified in this Section 5 shall not have
been fulfilled when and as required to be fulfilled, this Agreement (or, at the
option of the applicable Agent, any applicable Terms Agreement) may be
terminated by the Agents by notice to the Company at any time and any such
termination shall be without liability of any party to any other party, except
that the covenant
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regarding provision of an earnings statement set forth in Section 4(h) hereof,
the provisions concerning payment of expenses under Section 10 hereof, the
indemnity and contribution agreements set forth in Sections 8 and 9 hereof, the
provisions concerning the representations, warranties and agreements to survive
delivery under Section 11 hereof and the provisions set forth under Section 15
hereof shall remain in effect.
SECTION 6. Delivery of Payment for Notes Sold Through the Agents.
Delivery of Notes sold through the Agents, as agents, shall be made by
the Company for the account of any purchaser only against payment therefor in
immediately available funds. In the event that a purchaser shall fail either to
accept delivery of or to make payment for a Note on the date fixed for
settlement, the appropriate Agent shall promptly notify the Company and deliver
the Note to the Company, and, if such Agent has theretofore advanced to the
Company the purchaser's payment for such Note, the Company will promptly return
such funds to such Agent. If such failure occurred for any reason other than
default by such Agent in the performance of its respective obligations
hereunder, the Company will reimburse such Agent on an equitable basis for its
loss of the use of the funds for the period such funds were credited to the
Company's account.
SECTION 7. Additional Covenants.
The Company covenants and agrees with the Agents that:
(a) Reaffirmation of Representations and Warranties. Each acceptance by
the Company of an offer for the purchase of Notes, and each delivery of Notes to
an Agent pursuant to a Terms Agreement, shall be deemed to be an affirmation
that the representations and warranties of the Company contained in this
Agreement and in any certificates theretofore delivered to the Agents pursuant
hereto are true and correct at the time of such acceptance or sale, as the case
may be, and an undertaking that such representations and warranties will be true
and correct at the time of delivery to the purchaser or his agent, or to an
Agent, of the Note or Notes relating to such acceptance or sale, as the case may
be, as though made at and as of each such time (and it is understood that such
representations and warranties shall relate to the Registration Statement and
Prospectus as amended and supplemented to each such time).
(b) Subsequent Delivery of Certificates. Except as otherwise provided
in Section 4(m), each time that the Registration Statement or the Prospectus
shall be amended or supplemented, including without limitation through the
filing with the SEC of any Incorporated Document (other than any Current Report
on Form 8-K relating exclusively to the issuance of Notes under the Registration
Statement, unless the Agents otherwise specify) or (if so indicated in the
applicable Terms Agreement) the Company sells Notes to the Agents pursuant to a
Terms Agreement, the Company shall furnish or cause to be furnished to the
Agents forthwith a certificate, dated the date of effectiveness of such
amendment or supplement, the date of filing with the SEC of such Incorporated
Document, or the date of such sale, as the case may be, in form satisfactory to
the Agents to the effect that the statements contained in the certificate
referred to in Section 5(b) hereof
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which was furnished to the Agents are true and correct at the time of the
effectiveness of such amendment or supplement, the date of such filing, or the
date of such sale, as the case may be, as though made at and as of such time
(except that such statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such time) or in
lieu of such a certificate, a certificate of the same tenor as the certificate
referred to in said Section 5(b), modified as necessary to relate to the
Registration Statement and Prospectus as amended and supplemented to the date of
such certificate.
(c) Subsequent Delivery of Legal Opinion. Except as otherwise provided
in Section 4(m), each time that (i) the Registration Statement or the Prospectus
shall be amended or supplemented, including without limitation through the
filing with the SEC of any Incorporated Document (other than any Current Report
on Form 8-K or Quarterly Report on Form 10-Q, unless the Agents shall otherwise
specify) or (ii) if so indicated in the applicable Terms Agreement, the Company
sells Notes to an Agent pursuant to a Terms Agreement, the Company shall furnish
or cause to be furnished forthwith to each of the Agents (in case of (i) above)
or to the Agent party thereto (in the case of (ii) above) and to counsel for the
Agents a written opinion of Foley & Lardner, as counsel to the Company, or other
counsel satisfactory to the Agent or Agents receiving the opinion, dated the
date of effectiveness of such amendment or supplement, the date of filing with
the SEC of such Incorporated Document, or the date of such sale, as the case may
be, in form and substance satisfactory to the Agent or Agents receiving the
opinion, of the same tenor as the opinion referred to in Section 5(a)(1) hereof,
but modified, as necessary, to relate to the Registration Statement and
Prospectus as amended and supplemented to the date of such opinion or, in lieu
of such opinion, counsel last furnishing such opinion to the Agents or to such
Agent, as the case may be, shall furnish the Agents or such Agent with a letter
to the effect that the Agents or such Agent may rely on such last opinion to the
same extent as though it was dated the date of such letter authorizing reliance
(except that statements in such last opinion shall be deemed to relate to the
Registration Statement and Prospectus as amended and supplemented to the date of
such letter authorizing reliance).
(d) Subsequent Delivery of Accountant's Letter. Except as otherwise
provided in Section 4(m), each time (1) the Company files an Annual Report on
Form 10-K or (2) the Company sells Notes in any three-month period (whether in
Agency Transactions, Principal Transactions or any combination thereof) in an
aggregate principal amount which equals or exceeds $25 million, the Company
shall cause the Accountants or another firm of certified public accountants of
national reputation forthwith to furnish to each of the Agents or to the Agent
party thereto (in the case of (2) above), a letter, dated the date such document
is filed with the SEC or the date of sale of Notes in an aggregate principal
amount which, when combined with the aggregate principal amount of all Notes
sold in the preceding three-month period, equals or exceeds $25 million, as the
case may be, in form satisfactory to the Agent or Agents receiving such letter,
containing the statements prescribed in Section 5(c) hereof for such letter,
modified to relate to the Registration Statement and Prospectus, as amended and
supplemented to the date of such letter, with such changes as may be necessary
to reflect changes in the financial statements and other information derived
from the accounting records of the Company, except that:
23
<PAGE>
(i) only in the case of the filing by the Company of an Annual
Report on Form 10-K shall the Agents be entitled to require the additional
procedures referred to in clause (iv) of Section 5(c) and the inclusion by the
Accountants or such other firm of certified public accountants of national
reputation in such letter of their findings as a result of performing such
additional procedures; and
(ii) in all other cases, the Accountants or such other firm of
certified public accountants of national reputation need only furnish each of
the Agents with a letter pursuant to Section 5(i), (ii) and (iii) (which may
refer to letters previously delivered to the Agents under this Agreement), as
appropriately modified.
SECTION 8. Indemnification
(a) Indemnification of the Agents. The Company agrees to indemnify and
hold harmless each Agent and each person, if any, who controls each Agent within
the meaning of Section 15 of the 1933 Act and Section 20 of the 1934 Act as
follows:
(i) against any and all loss, liability, claim, damage and
expense, whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement (or
any amendment or supplement thereto) or Prospectus (or any amendment or
supplement thereto), or omission or alleged omission therefrom of a material
fact necessary to make the statements therein in the light of the circumstances
under which they were made, not misleading,;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim whatsoever based upon
any such untrue statement or omission, or any such alleged untrue statement or
omission if such settlement is effected with the written consent of the Company;
and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the Agents),
reasonably incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Agents expressly for use in the Registration Statement (or any amendment or
supplement thereto) or Prospectus (or any amendment or supplement thereto); and
provided further,
24
<PAGE>
that the foregoing indemity with respect to any untrue statement or omission
from a preliminary prospectus shall not inure to the benefit of any Agent (or
any person controlling such Agent) from whom the person asserting such loss,
liability, claim, damage or expense purchased any of the Notes that are the
subject thereof if the Company shall sustain the burden of proving that: (i) the
untrue statement or omission contained in the preliminary prospectus (excluding
Incorporated Documents) was corrected, (ii) such person was not sent or given a
copy of the Prospectus (excluding Incorporated Documents) which corrected the
untrue statement or omission at or prior to the written confirmation of the sale
of the Notes to such person if required by applicable law, and (iii) the Company
satisfied its obligation to provide a sufficient number of copies of the
Prospectus to such Agent.
(b) Indemnification of the Company. Each of the Agents agrees,
severally and not jointly, to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act and Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment or supplement thereto) or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with the
written information furnished to the Company by such Agent expressly for use in
the Registration Statement (or any amendment or supplement thereto) or the
Prospectus (or any amendment or supplement thereto), as set forth in Schedule B.
(c) General. Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but the
failure to so notify an indemnifying party shall not relieve such indemnifying
party from any liability hereunder to the extent it is not materially prejudiced
as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. In the
case of parties indemnified pursuant to Section 8(a) above, counsel to the
indemnified parties shall be selected by the Agents, and, in the case of parties
indemnified pursuant to Section 8(b) above, counsel to the indemnified parties
shall be selected by the Company, in each case reasonably acceptable to the
indemnifying party. An indemnifying party may participate at its own expense in
the defense of any such action; provided, however, that counsel to the
indemnifying party shall not (except with the consent of the indemnified party)
also be counsel to the indemnified party. In no event shall the indemnifying
parties be liable for the fees and expenses of more than one counsel (in
addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 8 or Section 9 hereof (whether or not the
indemnified parties are actual
25
<PAGE>
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim, and (ii)
does not include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
SECTION 9. Contribution
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 8 is for
any reason held to be unavailable to or is insufficient to hold harmless the
indemnified parties although applicable in accordance with its terms, the
Company and the Agents shall contribute to the aggregate losses, liabilities,
claims, damages and expenses, of the nature contemplated by said indemnity
agreement incurred by the Company and the Agents, as incurred, in such
proportions that each Agent is severally responsible for that portion
represented by the percentage that the total commissions and underwriting
discounts received by such Agent to the date of such liability bears to the
total sales price received by the Company from the sale of Notes sold to or
through such Agent to the date of such liability, and the Company is responsible
for the balance; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each person, if any, who
controls each Agent within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as such Agent, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act and Section 20 of the 1934 Act shall
have the same rights to contribution as the Company.
SECTION 10. Payment of Expenses.
Except as set forth in a Terms Agreement, the Company will pay all
expenses incident to the performance of its obligations under this Agreement,
including:
(i) The preparation and filing of the Registration Statement and all
amendments thereto and of the Prospectus and all amendments or supplements
thereto;
(ii) The preparation, printing, issuance and delivery of the Notes,
including the cost of obtaining CUSIP or other identification numbers for the
Notes;
(iii) The fees and disbursements of the Company's counsel, of the
Accountants, and of the Trustee and its counsel;
(iv) The reasonable fees and disbursements of counsel for the Agents
incurred from time to time in connection with the transactions contemplated
hereby;
26
<PAGE>
(v) The qualification of the Notes under state securities laws in
accordance with the provisions of Section 4(i), including filing fees and the
reasonable fees and disbursements of counsel for the Agents in connection
therewith and in connection with the preparation of any Blue Sky Survey and any
Legal Investment Survey; and
(vi) The printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement and any amendments
thereto, and of the Prospectus and any amendments or supplements thereto, and
the delivery by the Agents of the Prospectus and any amendments or supplements
thereto in connection with solicitations or confirmations of sales of the Notes;
(vii) Any fees charged by rating agencies for the rating of the Notes;
(viii) Any out-of-pocket expenses of the Agents incurred with the
written approval of the Company; and
(ix) The fees and expenses of any depositary and any nominees thereof
in connection with the use of book-entry Notes;
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement or any Terms Agreement, or contained in certificates of officers of
the Company submitted pursuant hereto or thereto, shall remain operative and in
full force and effect regardless of any investigation made by or on behalf of
the Agents or any controlling person of any Agent, or by or on behalf of the
Company, and shall survive each delivery of and payment for any of the Notes.
SECTION 12. Termination.
(a) Termination of This Agreement. This Agreement (excluding any Terms
Agreement) may be terminated for any reason at any time by the Company as to any
Agent or by any Agent insofar as this Agreement relates to such Agent, upon the
giving of 30 days' prior written notice of such termination to such Agent or the
Company, as the case may be.
(b) Termination of a Terms Agreement. Each Agent may terminate any
Terms Agreement to which it is a party, immediately upon notice to the Company,
at any time prior to the Settlement Date (as defined in such Terms Agreement)
relating thereto (i) if there has been, since the date of such Terms Agreement
or since the respective dates as of which information is given in the
Registration Statement or Prospectus, any material adverse change in the
condition, financial or otherwise, of the Company and its subsidiaries
considered as one enterprise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, or (ii) if there has
occurred any material adverse change in the financial markets of the United
States or any outbreak or escalation of hostilities or other national or
international calamity or crisis the effect of which change, outbreak
27
<PAGE>
or escalation, or calamity or crisis is such as to make it, in the judgment of
such Agent, impracticable to market the Notes or enforce contracts for the sale
of the Notes, or (iii) if trading in any securities of the Company has been
suspended by the SEC or a national securities exchange, or if trading generally
on the New York Stock Exchange has been suspended, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices for securities have
been required, by said exchange or by order of the SEC or any other governmental
authority, or if a banking moratorium has been declared by either Federal, New
York, or Wisconsin authorities, or (iv) if the ratings assigned by any
nationally recognized securities rating agency to any debt securities of the
Company as of the date of any applicable Terms Agreement shall have been lowered
since that date or if any such rating agency shall have publicly announced that
it has placed under surveillance or review, with possible negative implications,
its rating of any debt securities of the Company, or (v) if there shall have
come to the attention of such Agent any facts that would cause such Agent to
believe that the Prospectus, at the time it was required to be delivered to the
purchaser of Notes, contained an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances existing at the time of such delivery, not
misleading.
(c) General. In the event of any such termination, no party with
respect to which such termination has become effective will have any liability
to the other parties hereto, except that (i) each Agent shall be entitled to any
commissions earned in accordance with the third paragraph of Section 3(a)
hereof, (ii) if at the time of termination (A) any Agent shall own any Notes
purchased pursuant to a Terms Agreement with the intention of reselling them or
(b) an offer to purchase any of the Notes has been accepted by the Company, but
the time of delivery to the purchaser or his agent of the Note or Notes relating
thereto has not occurred, the covenants set forth in Sections 4 and 7 hereof
shall remain in effect until such Notes are so resold or delivered, as the case
may be, and (iii) the covenant set forth in Section 4(h) hereof, the indemnity
and contribution agreements set forth in Sections 8 and 9 hereof, and the
provisions of Sections 10, 11, 14 and 15 hereof shall remain in effect.
SECTION 13. Notices.
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, by mail or
by telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Company:
WPS Resources Corporation
700 North Adams Street
Green Bay, Wisconsin 54307
Attention: Treasurer
Telecopier: (920) 433-7653
28
<PAGE>
If to the Agents:
[Insert Names, Addresses and Facsimile Numbers]
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
SECTION 14. Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to agreements made and to be
performed in such State.
SECTION 15. Parties.
This Agreement shall inure to the benefit of and be binding upon each
Agent, the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 8 and 9 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties
hereto and their respective successors and said controlling persons and officers
and directors and their heirs and legal representatives, and for the benefit of
no other person, firm or corporation. No purchaser of Notes shall be deemed to
be a successor by reason merely of such purchase.
SECTION 16. Counterparts.
This Agreement may be executed in several counterparts, each of which
shall be deemed an original hereof.
SECTION 17. Captions.
The captions in this Agreement are for convenience of reference only
and shall not define or limit any of the terms of the provisions hereof.
SECTION 18. Severability of Provisions.
Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
29
<PAGE>
[This space intentionally left blank.]
30
<PAGE>
If the foregoing is in accordance with the Agents' understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument along with all counterparts will become a binding agreement
between the Agents, acting severally and not jointly, and the Company in
accordance with its terms.
Very truly yours,
WPS RESOURCES CORPORATION
By:
Name:
Title:
Consented and Agreed
to as of the date
first written above:
[NAME OF AGENT]
By:
Name:
Title:
[NAME OF AGENT]
By:
Name:
Title:
31
<PAGE>
LIST OF SCHEDULES AND EXHIBITS
Schedule A - Commissions (See Section 3(a))
Schedule B - Information provided by Agents (See Section 8(b))
Exhibit A - Form of Terms Agreement (See Section 3(b))
Exhibit B - Administrative Procedures (See Section 3(d))
32
<PAGE>
SCHEDULE A
As compensation for the services of the Agents hereunder, the Company
shall pay each Agent, in the form of a discount if funds are advanced by such
Agent on behalf of a purchaser, a commission for the sale of each Note by such
Agent equal to the principal amount of such Note multiplied by the appropriate
percentage set forth below:
MATURITY RANGES COMMISSION
1 year to less than 18 months
18 months to less than 2 years
2 years to less than 3 years
3 years to less than 4 years
4 years to less than 5 years
5 years to less than 6 years
6 years to less than 7 years
7 years to less than 10 years
10 years to less than 15 years
15 years to less than 20 years
20 years to 30 years
<PAGE>
SCHEDULE B
The information set forth below constitutes information furnished in
writing by or on behalf of the Agent[s] pursuant to Section 8(b) of the
Distribution Agreement expressly for use in the Registration Statement and
Prospectus:
<PAGE>
EXHIBIT A to
Distribution Agreement
WPS RESOURCES CORPORATION
Medium-Term Notes
Due One Year or More from the Date of Issue
TERMS AGREEMENT
[Date]
WPS Resources Corporation
700 North Adams Street
Green Bay, Wisconsin 54307
Attention:
Re: Distribution Agreement, dated ___________ (the "Agreement")
Ladies and Gentlemen:
Subject to the terms and conditions set forth herein, the undersigned
(the "Purchaser") agrees to purchase the following principal amount of
Medium-Term Notes:
$-----------------
The following terms shall apply to the Medium-Term Notes to be
purchased hereunder:
[Complete as applicable]
Interest Payment Dates: and of each year
Record Dates: and of each year
Interest Rate:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
A-1
<PAGE>
Maturity Date:
Purchase Price:
Settlement Date and Time (Original Issue Date):
Provisions applicable to the failure of any Agent (if more than one
Agent) to purchase and pay for the Notes it has agreed to purchase and
pay for hereunder:
Additional Terms:
The Certificates referred to in Section 7(b) of the Agreement, the
opinion referred to in Section 7(c) of the Agreement and the Accountants' Letter
referred to in Section 7(d) of the Agreement will [not] be required. The
Stand-off Agreement pursuant to Section 4(k) will [not] be applicable to this
purchase.
The sale of the Medium-Term Notes to the Purchaser is being made
pursuant to Section 3(b) of the Agreement. The provisions of the Agreement are
hereby incorporated by reference herein and shall be deemed to be part of this
Terms Agreement to the same extent as if such provisions had been set forth in
full herein.
A-2
<PAGE>
The information set forth on Attachment A hereto constitutes the
information furnished in writing by or on behalf of the Purchaser pursuant to
Section 8(b) of the Agreement.
[NAME OF PURCHASER]
By: ]
Name:
Title:
[NAME OF PURCHASER]
By:
Name:
Title:
Accepted:
WPS RESOURCES CORPORATION
By:
A-3
<PAGE>
ATTACHMENT A
to
Terms Agreement
The information furnished in writing by or on behalf of the Agent[s]
expressly for use in the Registration Statement and Prospectus pursuant to
Section 8(b) of the Distribution Agreement is set forth below:
<PAGE>
EXHIBIT B
to
Distribution Agreement
ADMINISTRATIVE PROCEDURES
<PAGE>
WPS RESOURCES CORPORATION
ADMINISTRATIVE PROCEDURES
For Fixed Rate Medium-Term Notes
Due One Year or More from the Date of Issue
Medium-term notes in the aggregate principal amount of up to
$______________ are to be offered on a continuing basis by WPS Resources
Corporation (the "Company") through ____________ and ________________ , who, as
agents (each an "Agent" and, collectively, the "Agents"), have agreed to use
their reasonable commercial efforts to solicit offers to purchase the Notes from
the Company. If agreed upon by the Agents and the Company, the Agents may also
purchase Notes as principals for resale.
The Notes are being sold pursuant to a Distribution Agreement between
the Company and the Agents, dated __________, _____ (the "Distribution
Agreement"). The Notes are to be issued as a new series of debt securities under
the Indenture, dated as of October 1, 1999, between the Company and Firstar
Bank, National Association, as trustee (the "Trustee"), as supplemented by the
First Supplemental Indenture, dated __________, _____, to be entered into
between the Company and the Trustee (as so supplemented, the "Indenture"). The
Registration Statement (as defined in the Distribution Agreement) and the
Prospectus (as defined in the Distribution Agreement) with respect to the Notes
have been filed with the Securities and Exchange Commission (the "Commission").
Each pricing supplement, as filed or to be filed with the Commission with
respect to the specific terms of any Notes, is herein referred to as a "Pricing
Supplement."
Purchases by the Agents as principals will be made in accordance with
terms agreed upon by the Agents and the Company in a Terms Agreement executed in
accordance with Section 3(b) of the Distribution Agreement. Only those
provisions in these Administrative Procedures that are applicable to the
particular role to be performed by the related Agent or Agents shall apply to
the offer and sale of the relevant Note. In the event of any conflict between
the terms or procedures set forth in the Distribution Agreement and these
Administrative Procedures, the terms of the Distribution Agreement shall
control.
The Notes will either be issued (a) in book-entry form and represented
by one or more fully registered Notes without coupons (each, a "Book-Entry
Note") delivered to the Trustee, as agent for The Depository Trust Company
("DTC"), and recorded in the book-entry system maintained by DTC, or (b) in
certificated form (each, a "Certificated Note") delivered to the purchaser
thereof or a person designated by such purchaser. Except in the limited
circumstances described in the Prospectus or a Pricing Supplement, owners of
beneficial interests in Notes issued in book-entry form will not be entitled to
physical delivery of Notes in certificated form equal in principal amount to
their respective beneficial interests.
B-1
<PAGE>
General procedures relating to the issuance of all Notes are set forth
in Part I hereof. Additionally, Notes issued in book-entry form will be issued
in accordance with the procedures set forth in Part II hereof and Notes issued
in certificated form will be issued in accordance with the procedures set forth
in Part III hereof. Capitalized terms used herein that are not otherwise defined
shall have the meanings given such terms in the Distribution Agreement or the
Notes, as the case may be.
PART I: PROCEDURES OF GENERAL
APPLICABILITY
Date of Issuance/
Authentication: Each Note will be dated as of the date of
its authentication by the Trustee. Each Note
shall also bear an original issue date (the
"Original Issue Date"). The Original Issue
Date shall remain the same for all Notes
subsequently issued upon transfer, exchange
or substitution of an original Note
regardless of their dates of authentication.
Maturities: Each Note will mature on a date selected by
the investor or other purchaser and agreed
to by the Company [one year] or more from
its Original Issue Date.
Registration: Unless otherwise provided in the applicable
Pricing Supplement, Notes will be issued
only in fully registered form.
Denominations: Unless otherwise provided in the applicable
Pricing Supplement, Notes will be issued in
denominations of $1,000 or any integral
multiple thereof.
Redemption: [The Notes will be subject to redemption by
the Company in accordance with the terms of
the Notes, which will be fixed at the time
of sale and set forth in the applicable
Pricing Supplement. If no Initial Redemption
Date is indicated with respect to a Note,
such Note will not be redeemable prior to
its Stated Maturity Date.
Calculation of
Interest: Fixed rate interest (including payments for
partial periods) will be calculated and paid
on the basis of a 360-day year of twelve
30-day months.
Interest: General. Each Note will bear interest in
accordance with its terms. Unless otherwise
provided in an applicable Pricing
Supplement,
B-2
<PAGE>
interest on each Note will accrue from and
including the Original Issue Date of such
Note for the first interest period and from
the most recent Interest Payment Date to
which interest has been paid or duly
provided for all subsequent interest
periods. Each payment of interest will
include interest accrued through the day
preceding, as the case may be, the Interest
Payment Date, the Stated Maturity, or any
Redemption Date (each Stated Maturity or
Redemption Date is referred to herein as
"Maturity"). Interest payable at Maturity
will be payable to the Person to whom the
principal of such Note is payable. If an
Interest Payment Date falls on a day that is
not a Business Day, the payment of interest
required to be made on such Interest Payment
Date need not be made on such day, but may
be made on the next succeeding Business Day
with the same force and effect as if made on
such Interest Payment Date and no interest
shall accrue on such payment for the period
from and after such Interest Payment Date.
If the date of Maturity of a Note is not a
Business Day, the payment of principal and
interest due on such day shall be made on
the next succeeding Business Day and no
interest shall accrue on such payment for
the period from and after such Maturity.
Record Dates. Unless otherwise indicated in
an applicable Pricing Supplement, the Record
Date with respect to any Interest Payment
Date for a Note shall be the fifteenth day
(whether or not a Business Day) of the
calendar month immediately preceding such
Interest Payment Date.
Interest Payment Dates. Interest payments
will be made on each Interest Payment Date
commencing with the first Interest Payment
Date following the Original Issue Date;
provided, however, the first payment of
interest on any Note originally issued
between a Regular Record Date and an
Interest Payment Date will occur on the
Interest Payment Date following the next
Record Date. Interest payments on the Notes
will be made semiannually on the dates
specified in the applicable Note and related
Pricing Supplement and at Maturity.
B-3
<PAGE>
Acceptance and
Rejection of Offers
from Solicitation
as Agents: If agreed upon by any Agent and the Company,
such Agent acting solely as agent for the
Company and not as principal will solicit
purchases of the Notes. Each Agent will
communicate to the Company, orally or in
writing, each reasonable offer to purchase
Notes solicited by such Agent on an agency
basis, other than those offers rejected by
such Agent. Each Agent has the right, in its
discretion reasonably exercised, to reject
any proposed purchase of Notes through it,
in whole or in part, and any such rejection
is not deemed a breach of such Agent's
agreement contained in the Distribution
Agreement. The Company has the sole right to
accept or reject any proposed purchase of
the Notes, in whole or in part, and any such
rejection is not deemed a breach of the
Company's agreement contained in the
Distribution Agreement. Each Agent has
agreed to make reasonable efforts to assist
the Company in obtaining performance by each
purchaser whose offer to purchase Notes has
been solicited by such Agent and accepted by
the Company.
Preparation of Pricing
Supplement: If any offer to purchase a Note is accepted
by the Company, the Company, with the
approval of the Agent presenting the offer
(the "Offering Agent"), will promptly
prepare and file with the Commission, in
accordance with Rule 424 under the 1933 Act,
a Pricing Supplement reflecting the terms of
such Note and the plan of distribution
thereof. The Offering Agent will cause a
Prospectus, as supplemented by such Pricing
Supplement (as so supplemented, a
"Supplemented Prospectus") to be delivered
to the purchaser of such Notes.
The Company shall deliver a completed
Pricing Supplement, by telecopy or overnight
express (for delivery as soon as practicable
following the trade, but in no event later
than 11:00 a.m. New York City time on the
Business Day following the applicable trade
date) to the Offering Agent, the Agent's
counsel and the Trustee at the following
applicable address:
If to ___________________ to
[Insert Names and Addresses of Agent]
If to Agent's Counsel, to:
[Insert Name and Address of Agent's Counsel]
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If to the Trustee, to:
[Insert Name and Address of Trustee]
In each instance that a Pricing Supplement
is prepared, the Offering Agent will affix
such Pricing Supplement to the Prospectus
prior to use. Outdated Pricing Supplements
and the Prospectuses to which they are
attached (other than those retained for
files) will be destroyed.
Settlement: The receipt of immediately available funds
by the Company in payment for a Note and the
authentication and delivery of such Note
shall, with respect to such Note, constitute
"settlement". Offers accepted by the Company
will be settled on the third Business Days
after the date of such acceptance, or at
such time as the purchaser, the applicable
Agent, the Trustee, and the Company shall
agree, pursuant to the timetable for
settlement set forth in Parts II and III
hereof under "Settlement Procedures" with
respect to Book-Entry Notes and Certificated
Notes, respectively (each such date fixed
for settlement is hereinafter referred to as
a "Settlement Date"). If procedures A and B
of the applicable Settlement Procedures with
respect to a particular offer are not
completed on or before the time set forth
under the applicable "Settlement Procedures
Timetable", such offer shall not be settled
until the Business Day following the
completion of settlement procedures A and B
or such later date as the purchaser and the
Company shall agree.
The foregoing settlement procedures may be
modified, with respect to any purchase of
Notes by an Agent as principal, if so agreed
by the Company and such Agent pursuant to
the applicable Terms Agreement.
[Procedure for Changing
Rates or Other
Variable Terms: When a decision has been reached to change
the interest rate or any other variable term
on any Notes being sold by the Company, the
Company will promptly advise the Agents and
the Trustee by facsimile transmission and
the Agents will forthwith suspend
solicitation of offers to purchase such
Notes. The Agents will telephone the Company
with recommendations as to the changed
interest rates or other variable terms. At
such time as the Company
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advises the Agents and the Trustee by
facsimile transmission of the new interest
rates or other variable terms, the Agents
may resume solicitation of offers to
purchase such Notes. Until such time only
"indications of interest" may be recorded.
Immediately after acceptance by the Company
of an offer to purchase Notes at a new
interest rate or new variable term, the
Company, the Offering Agent and the Trustee
shall follow the procedures set forth under
the applicable "Settlement Procedures."
Suspension of Solicitation;
Amendment or
Supplement: The Company may instruct the Agents to
suspend solicitation of offers to purchase
Notes at any time. Upon receipt of such
instructions, the Agents will forthwith
suspend solicitation of offers to purchase
from the Company until such time as the
Company has advised them that solicitation
of offers to purchase may be resumed. If the
Company decides to amend or supplement the
Registration Statement and Prospectus
(including by filing any documents
incorporated by reference therein), it will
promptly advise the Agents and will furnish
the Agents and/or their counsel with copies
of the proposed amendment or supplement
(including any document proposed to be
incorporated by reference therein). One copy
of such document, along with a copy of any
correspondence relating thereto sent to the
Commission, will be telecopied or delivered
to each of the Agents, their counsel and the
Trustee at their respective addresses set
forth under the heading "Preparation of
Pricing Supplement."
In the event that at the time the
solicitation of offers to purchase from the
Company is suspended [(other than to
establish or change interest rates,
maturities, prices or other similar variable
terms with respect to the Notes)] there
shall be any offers to purchase Notes that
have been accepted by the Company which have
not been settled, the Company will promptly
advise the Agents and the Trustee whether
such offers may be settled and whether
copies of the Prospectus as theretofore
amended and/or supplemented as in effect at
the time of the suspension may be delivered
in connection with the settlement of such
offers. The Company will have the sole
responsibility for such decision and for any
arrangements which may be made in the event
that the Company determines that such offers
may not be settled or that copies of such
Prospectus may not be so delivered.
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Delivery of Supplemented
Prospectus: A copy of the most recent Supplemented
Prospectus must accompany or precede the
earlier of (a) the written confirmation of a
sale sent to an investor or other purchaser
or its agent and (b) the delivery of Notes
to an investor or other purchaser or its
agent.
Authenticity of
Signatures: The Agents will have no obligations or
liability to the Company or the Trustee in
respect of the authenticity of the signature
of any officer, employee or agent of the
Company or the Trustee on any Note.
Documents Incorporated
by Reference: The Company shall supply the Agents with an
adequate supply of all documents
incorporated by reference in the
Registration Statement and Prospectus.
Business Day: As used herein, "Business Day" means, unless
otherwise specified in the applicable
Pricing Supplement, any day that in the City
of New York or the City of Milwaukee is not
a day on which banking institutions are
authorized or required by law or regulation
to close.
PART II: PROCEDURES FOR NOTES ISSUED
IN BOOK-ENTRY FORM
In connection with the qualification of Notes issued in book-entry form
for eligibility in the book-entry system maintained by DTC, the Trustee will
perform the custodial, document control and administrative functions described
below, in accordance with its respective obligations under a Letter of
Representation from the Company and the Trustee to DTC, dated _________, 1999
and a Medium-Term Note Certificate Agreement, dated __________, 1999, between
the Trustee and DTC, as amended (the "Certificate Agreement"), and its
obligations as a participant in DTC, including DTC's Same-Day Funds Settlement
System ("SDFS").
Issuance: All Notes issued in book-entry form having
the same Original Issue Date, Interest Rate,
Default Rate, Interest Payment Dates,
redemption terms, if any, and Stated
Maturity (the "Fixed Rate Terms") will be
represented initially by a single Book-Entry
Note. For other variable terms with respect
to the Notes, see the Prospectus and the
applicable Pricing Supplement.
Except as described in the Prospectus, no
owner of a beneficial interest in a
Book-Entry Note shall be entitled to receive
any Note issued in certificated form with
respect to such beneficial interest.
Identification: The Company has arranged with the CUSIP
Service Bureau of Standard & Poor's
Corporation (the "CUSIP Service Bureau") for
the
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reservation of a series of CUSIP numbers,
consisting of approximately 900 CUSIP
numbers which have been reserved for and
relating to Book-Entry Notes, and the
Company has delivered to the Trustee and DTC
a list of such CUSIP numbers. The Trustee
will assign CUSIP numbers to Book-Entry
Notes as described below under Settlement
Procedure B. DTC will notify the CUSIP
Service Bureau periodically of the CUSIP
numbers that the Trustee has assigned to
Book-Entry Notes. If at any time fewer than
100 of the reserved CUSIP numbers remain
unassigned to Book-Entry Notes, the Company,
if it deems necessary, will reserve and
obtain additional CUSIP numbers for
assignment to Book-Entry Notes. Upon
obtaining such additional CUSIP numbers, the
Company will deliver a list of such
additional numbers to the Trustee and DTC.
Book-Entry Notes having an aggregate
principal amount in excess of $200,000,000
and otherwise required to be represented by
the same Book-Entry Note will instead be
represented by two or more Book- Entry Notes
which shall all be assigned the same CUSIP
number.
Registration: Unless otherwise specified by DTC, each
Book-Entry Note will be registered in the
name of Cede & Co., as nominee for DTC, on
the register maintained by the Trustee under
the Indenture. The beneficial owner of a
Note issued in book-entry form (i.e., an
owner of a beneficial interest in a
Book-Entry Note) (or one or more indirect
participants in DTC designated by such
owner) will designate one or more
participants in DTC (with respect to such
Note issued in book-entry form, the
"Participants") to act as agent for such
beneficial owner in connection with the
book-entry system maintained by DTC, and DTC
will record in book-entry form, in
accordance with the instructions provided by
such Participants, a credit balance with
respect to such Note issued in book-entry
form in the account of such Participants.
The ownership interest of such beneficial
owner in such Note issued in book-entry form
will be recorded through the records of such
Participants or through the separate records
of such Participants and one or more
indirect participants in DTC.
Transfers: Transfers of beneficial ownership interests
in a Book-Entry Note will be accomplished by
book entries made by DTC and, in turn, by
Participants (and in certain cases, one or
more indirect participants in DTC) acting on
behalf of beneficial transferors and
transferees of such Book-Entry Note.
Exchanges: The Trustee may deliver to DTC and the CUSIP
Service Bureau at any time a written notice
specifying (a) the CUSIP numbers of two or
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<PAGE>
more Book-Entry Notes outstanding on such
date that represent Book-Entry Notes having
the same Fixed Rate Terms (other than
Original Issue Dates), and for which
interest has been paid to the same date; (b)
a date, occurring at least 30 days after
such written notice is delivered and at
least 30 days before the next Interest
Payment Date for the related Notes issued in
book-entry form, on which such Book-Entry
Notes shall be exchanged for a single
replacement Book-Entry Note; and (c) a new
CUSIP number, obtained from the Company, to
be assigned to such replacement Book-Entry
Note. Upon receipt of such a notice, DTC
will send to its Participants (including the
Trustee) a written reorganization notice to
the effect that such exchange will occur on
such date. Prior to the specified exchange
date, the Trustee will deliver to the CUSIP
Service Bureau written notice setting forth
such exchange date and the new CUSIP number
and stating that, as of such exchange date,
the CUSIP numbers of the Book-Entry Notes to
be exchanged will no longer be valid. On the
specified exchange date, the Trustee will
exchange such Book-Entry Notes for a single
Book-Entry Note bearing the new number, and
the CUSIP numbers of the exchanged
Book-Entry Notes will, in accordance with
CUSIP Service Bureau procedures, be canceled
and not immediately reassigned.
Notwithstanding the foregoing, unless
otherwise permitted by DTC, if the
Book-Entry Notes to be exchanged exceed
$200,000,000 in aggregate principal amount,
one replacement Book-Entry Note will be
authenticated and issued to represent each
$200,000,000 of principal amount of the
exchanged Book-Entry Notes and an additional
Book-Entry Note or Notes will be
authenticated and issued to represent any
remaining principal amount of such
Book-Entry Notes (See "Denominations"
below).
Denominations: Unless otherwise provided in the Pricing
Supplement, Notes issued in book-entry form
will be issued in denominations of $1,000
and integral multiples thereof. Unless
otherwise permitted by DTC, Book-Entry Notes
will not be denominated in principal amounts
in excess of $200,000,000. If one or more
Notes are issued in book- entry form in
excess of $200,000,000 and would, but for
the preceding sentence, be represented by a
single Book-Entry Note, then one Book-Entry
Note will be issued to represent each
$200,000,000 principal amount of such Note
or Notes issued in book-entry form and an
additional Book-Entry Note or Book-Entry
Notes will be issued to represent any
remaining principal amount of such Note or
Notes issued in book-entry form. In such a
case, each of the Book-
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<PAGE>
Entry Notes representing such Note or Notes
issued in book-entry form shall be assigned
the same CUSIP number.
Payments of Principal
and Interest: Payments of Interest Only. Promptly after
each Record Date, the Trustee will deliver
to the Company and DTC a written notice
specifying by CUSIP number the amount of
interest to be paid on each Book-Entry Note
on the following Interest Payment Date
(other than an Interest Payment Date
coinciding with Maturity) and the total of
such amounts. DTC will confirm the amount
payable on each Book-Entry Note on such
Interest Payment Date by reference to the
daily bond reports published by Standard &
Poor's Ratings Group. On or prior to such
Interest Payment Date, the Company will pay
to the Trustee in immediately available
funds an amount sufficient to pay the
interest then due and owing on such
Book-Entry Notes, and upon receipt of such
funds from the Company, the Trustee in turn
will pay to DTC such total amount of
interest due (other than at Maturity), at
the times and in the manner set forth below
under "Manner of Payment".
Payments at Maturity. On or about the first
Business Day of each month, the Trustee will
deliver to the Company and DTC (1) a written
list of principal, interest and premium, if
any, to be paid on each Book-Entry Note
maturing either at Stated Maturity or on a
Redemption Date in the following month, and
(2) a written statement indicating the total
principal amount of outstanding Book-Entry
Notes as of the close of business on the
immediately preceding Business Day. The
Trustee, the Company and DTC will confirm
the amounts of such principal, premium, if
any, and interest payments with respect to a
Book-Entry Note on or about the fifth
Business Day preceding the Maturity of such
Book-Entry Note. At or prior to such
Maturity, the Company will pay to the
Trustee in immediately available funds an
amount sufficient to make the required
payments, and upon receipt of such funds the
Trustee in turn will pay to DTC, the
principal amount of such Book-Entry Note,
together with premium, if any, and interest
due at such Maturity, at the times and in
the manner set forth below under "Manner of
Payment". Promptly after payment to DTC of
the principal, interest and premium, if any,
due at the Maturity of such Book-Entry Note,
the Trustee will cancel such Book-Entry Note
and deliver it to the Company with an
appropriate debit advice.
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<PAGE>
Manner of Payment. The total amount of any
principal, premium, if any, and interest due
on Book-Entry Notes on any Interest Payment
Date or at Maturity shall be paid by the
Company to the Trustee in funds available
for use by the Trustee no later than 11:00
a.m., New York City time, on such date. The
Company will make such payment on such
Book-Entry Notes to an account specified by
the Trustee. Upon receipt of such funds, the
Trustee will pay by separate wire transfer
(using Fedwire message entry instructions in
a form previously specified by DTC) to an
account at the Federal Reserve Bank of New
York previously specified by DTC, in funds
available for immediate use by DTC, each
payment of interest, principal and premium,
if any, due on a Book-Entry Note on such
date. Thereafter on such date, DTC will pay,
in accordance with its SDFS operating
procedures then in effect, such amounts in
funds available for immediate use to the
respective Participants in whose names such
Notes are recorded in the book-entry system
maintained by DTC. Neither the Company nor
the Trustee shall have any responsibility or
liability for the payment by DTC of the
principal of, premium, if any, or interest
on, the Book-Entry Notes to such
Participants.
Withholding Taxes. The amount of any taxes
required under applicable law to be withheld
from any interest payment on a Note will be
determined and withheld by the Participant,
indirect participant in DTC or other person
responsible for forwarding payments and
materials directly to the beneficial owner
of such Note.
Settlement Procedures: Settlement Procedures with regard to each
Note in book-entry form purchased by each
Agent, as principal, or sold by an Agent, as
agent of the Company, will be as follows:
A. The Offering Agent will advise the
Company by telephone, confirmed by
facsimile, of the following
Settlement Information:
1. Taxpayer identification
number of the purchaser.
2. Principal amount of the Note
3. Interest Rate
4. Interest Payment Dates
5. Price to public.
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6. Trade Date.
7. Settlement Date (Original
Issue Date)
8. Stated Maturity Date.
9. Redemption provisions, if
any, including: Initial
Redemption Date, Initial
Redemption Percentage and
Annual Redemption Reduction
Percentage.
10. Net proceeds to the Company.
11. The Offering Agent's
commission or discount.
12. Whether such Note is being
sold to the Offering Agent
as principal or to an
investor or other purchaser
through the Offering Agent
acting as agent for the
Company.
13. Whether such Note is being
issued with Original Issue
Discount and the terms
thereof.
14. Such other information
specified with respect to
the Notes.
B. The Company will advise the Trustee
by facsimile transmission or other
electronic transmission of the
above settlement information
received from the Offering Agent
and the name of the Offering Agent,
and the Trustee will assign a CUSIP
number to such Note.
C. The Trustee will communicate to DTC
and the Offering Agent through
DTC's Participant Terminal System,
a pending deposit message
specifying thefollowing settlement
information:
1. The information set forth
in the Settlement Procedure
A.
2. Identification numbers of
the participant accounts
maintained by DTC on behalf
of the Trustee and the
Offering Agent.
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<PAGE>
3. Initial Interest Payment
Date for such Note, number
of days by which such date
succeeds the related record
date for DTC purposes, and
the amount of interest
payable on such Interest
Payment Date (which amount
shall have been confirmed
by the Trustee).
4. CUSIP number of the Book-
Entry Note representing
such Note.
5. Whether such Book-Entry
Note represents any other
Notes issued or to be
issued in book-entry form.
DTC will arrange for each
pending deposit message
described above to be
transmitted to Standard &
Poor's Corporation, which
will use the information in
the message to include
certain terms of the
related Book-Entry Note in
the appropriate daily bond
report published by
Standard & Poor's
Corporation.
D. The Board of Directors of the
Company or its Executive Committee
or a designee thereof shall approve
the final terms of the Book-Entry
Notes.
E. The Trustee will complete the
Book-Entry Note in a form that has
been approved by the Company, the
Agents and the Trustee, and
authenticate the Book-Entry Note
representing such Note.
F. DTC will credit such Note to the
participant account of the Trustee
maintained by DTC.
G. The Trustee will enter an SDFS
deliver order through DTC's
Participant Terminal System
instructing DTC (i) to debit such
Note to the Trustee's participant
account and credit such Note to the
participant account of the Offering
Agent maintained by DTC and (ii) to
debit the settlement account of the
Offering Agent and credit the
settlement account of the Trustee
maintained by DTC, in an amount
equal to the price of such Note
less such Offering Agent's discount
or underwriting commission, as
applicable. Any entry of such a
deliver order shall be deemed to
constitute a representation and
warranty by the Trustee to DTC that
(i) the Book-Entry Note
representing such Note has been
issued and
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<PAGE>
authenticated and (ii) the Trustee
is holding such Book-Entry Note
pursuant to the Certificate
Agreement.
H. In the case of Notes sold through
an Offering Agent, as Agent, the
Offering Agent will enter an SDFS
deliver order through DTC's
Participant Terminal System
instructing DTC to debit such Note
to the Offering Agent's participant
account and credit such Note to the
participant account of such
Participants maintained by DTC and
(ii) to debit the settlement
accounts of such Participants and
credit the settlement account of
the Offering Agent maintained by
DTC in an amount equal to the
initial public offering price of
such Note.
I. Transfers of funds in accordance
with SDFS deliver orders described
in Settlement Procedures G and H
will be settled in accordance with
SDFS operating procedures in effect
on the Settlement Date.
J. Upon receipt, the Trustee will pay
the Company, by wire transfer of
immediately available funds to the
account of the Company at Firstar
Bank Milwaukee, N.A., National
Association, ABA #075000022,
Account #183211520 or to such other
account specified by the Company to
the Trustee from time to time, in
the amount transferred to the
Trustee in accordance with
Settlement Procedure G.
K. The Trustee will send a copy of the
Book-Entry Note to the Company
together with a statement setting
forth the principal amount of Notes
outstanding under the Indenture.
L. If the Note was sold through an
Offering Agent, as agent, the
Offering Agent will confirm the
purchase of such Note to the
purchaser either by transmitting to
the Participant with respect to
such Note a confirmation order
through DTC's Participant Terminal
System or by mailing a written
confirmation to such purchaser.
Settlement Procedures
Timetable: For offers to purchase Notes accepted by the
Company, Settlement Procedures "A" through
"L" set forth above shall be completed as
soon as possible following the trade but not
later than the respective times (New York
City time) set forth below:
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<PAGE>
SETTLEMENT
PROCEDURE TIME
A 11:00 a.m. on the trade date or
within one hour following the
trade
B 12:00 noon on the trade date or
within one hour following the
trade
C No later than the close of
business on the trade date
D No later than the Business Day
before Settlement Date
E 9:00 a.m. on Settlement Date
F 10:00 a.m. on Settlement Date
G-H No later than 2:00 p.m. on
Settlement Date
I 4:00 p.m. on Settlement Date
J-L 5:00 p.m. on Settlement Date
Settlement Procedure I is subject to
extension in accordance with any extension
of Fedwire closing deadlines and in the
other events specified in the SDFS operating
procedures in effect on the Settlement Date.
If settlement of a Note issued in book-entry
form is rescheduled or canceled, the Trustee
will deliver to DTC, through DTC's
Participant Terminal System, a cancellation
message to such effect by no later than 2:00
p.m., New York City time, on the Business
Day immediately preceding the scheduled
Settlement Date.
Failure to Settle: If the Trustee fails to enter an SDFS
deliver order with respect to a Note issued
in book-entry form pursuant to Settlement
Procedure G, the Trustee may deliver to DTC,
through DTC's Participant Terminal System,
as soon as practicable a withdrawal message
instructing DTC to debit such Note to the
participant account of the Trustee
maintained at DTC. DTC will process the
withdrawal message, provided that such
participant account contains a principal
amount of the Book-Entry Note representing
such Note that is at least equal to the
principal amount to be debited. If
withdrawal messages are processed with
respect to all the Notes represented by a
Book-Entry Note, the Trustee will mark such
Book-Entry Note "canceled", make appropriate
entries in its records, and send
certification of destruction of such
canceled Book-Entry Note to the Company. The
CUSIP number assigned to such Book-Entry
Note shall, in accordance with
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<PAGE>
CUSIP Service Bureau procedures, be canceled
and not immediately reassigned. If
withdrawal messages are processed with
respect to a portion of the Notes
represented by a Book-Entry Note, the
Trustee will exchange such Book-Entry Note
for two Book-Entry Notes, one of which shall
represent the Book-Entry Notes for which
withdrawal messages are processed, and the
other of which shall represent the other
Notes previously represented by the
surrendered Book-Entry Note and shall bear
the CUSIP number of the surrendered Book-
Entry Note.
In the case of any Note sold through the
Offering Agent, as agent, if the purchase
price for any Note in book-entry form is not
timely paid to the Participants with respect
to such Note by the beneficial purchaser
thereof (or a person, including an indirect
participant in DTC, acting on behalf of such
purchaser), such Participants and, in turn,
the related Offering Agent may enter SDFS
deliver orders through DTC's Participant
Terminal System reversing the orders entered
pursuant to Settlement Procedures G and H,
respectively. Thereafter, the Trustee will
deliver the withdrawal message and take the
related actions described in the preceding
paragraph. If such failure shall have
occurred for any reason other than default
by the applicable Offering Agent to perform
its obligations hereunder or under the
Distribution Agreement, the Company will
reimburse such Offering Agent on an
equitable basis for its reasonable loss of
the use of funds during the period when the
funds were credited to the account of the
Company.
Notwithstanding the foregoing, upon any
failure to settle with respect to a Note in
book-entry form, DTC may take any actions in
accordance with its SDFS operating
procedures then in effect. In the event of a
failure to settle with respect to a Note
that was to have been represented by a
Book-Entry Note also representing other
Notes, the Trustee will provide, in
accordance with Settlement Procedure E, for
the authentication and issuance of a
Book-Entry Note representing such remaining
Notes and will make appropriate entries in
its records.
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<PAGE>
PART III: PROCEDURES FOR NOTES ISSUED
IN CERTIFICATED FORM
Denominations: The Certificated Notes will be issued in
denominations of $1,000 and integral
multiples thereof.
Payments of Principal
and Interest: Upon presentment and delivery of the
Certificated Note, the Trustee upon receipt
of immediately available funds from the
Company will pay the principal amount of
each Certificated Note at Maturity and the
final installment of interest in immediately
available funds. All interest payments on a
Certificated Note, other than interest due
at Maturity, will be made at the Corporate
Trust office of the Trustee or, at the
option of the Company, may be made by check
mailed to the address of the person entitled
thereto as such address shall appear in the
security Register; provided, however, that
holders of Certificated Notes may, at the
option of the Company, be entitled to
receive payments of interest, other than at
Maturity, by wire transfer of immediately
available funds to an account of a bank
located in the United States if appropriate
wire transfer instructions have been
received in writing by the Trustee not less
than 14 calendar days prior to the
applicable Interest Payment Date.
The Trustee will provide monthly to the
Company a list of the principal, premium, if
any, and interest to be paid on Certificated
Notes maturing in the next succeeding month.
The Trustee will be responsible for
withholding taxes on interest paid as
required by applicable law, but shall be
relieved from any such responsibility if it
acts in good faith and in reliance upon an
opinion of counsel.
Certificated Notes presented to the Trustee
at Maturity for payment will be canceled by
the Trustee. All canceled Certificated Notes
held by the Trustee shall be destroyed, and
the Trustee shall furnish to the Company a
certificate with respect to such
destruction.
Settlement Procedures: Settlement Procedures with regard to each
Certificated Note purchased by any Agent, as
principal, or through any Agent, as agent,
shall be as follows:
A. The Offering Agent will advise the
Company by telephone of the
following settlement information
with regard to each Note:
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1. Exact name in which the
Certificated Note(s) is to be
registered (the "Registered
Owner").
2. Exact address or addresses of
the Registered Owner for
delivery, notices and payments
of principal, premium, if any,
and interest.
3. Taxpayer identification number
of the Registered Owner.
4. Principal amount of the
Certificated Note.
5. Denomination of the
Certificated Note.
6. Interest Rate.
7. Interest Payment Dates.
8. Price to public.
9. Trade Date.
10. Settlement Date (Original
Issue Date).
11. Stated Maturity Date.
12. Net Proceeds to the Company.
13. The Offering Agent's
commission or discount.
14. Whether such Notes are being
sold to the Offering Agent as
principal or to a purchaser
through the Offering Agent
acting as agent for the
Company.
15. Redemption provisions, if any.
16. Default Rate, if any.
17. Whether such Note is being
issued with original issue
discount and the terms
thereof.
18. Such other information
specified with respect to the
Notes (whether by Addendum or
otherwise).
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<PAGE>
B. After receiving such settlement
information from the Offering
Agent, the Company will advise the
Trustee of the above settlement
information by facsimile
transmission confirmed by
telephone. The Company will cause
the Trustee to issue, authenticate
and deliver the Certificated Note.
The Company shall also provide to
the Trustee and/or Offering Agent a
copy of the applicable Pricing
Supplement.
C. The Board of Directors of the
Company or its Executive Committee
or the designee thereof shall
approve the final forms of the
Certificated Notes.
D. With respect to each trade, the
Trustee will deliver the
Certificated Notes to the Offering
Agent at the following applicable
address:
If to ______________, to:
[Insert Name and Address of Agent]
If to , to:
[Insert Name and Address of Agent]
The Trustee will keep a copy of such
Certificated Note. The Offering
Agent will acknowledge receipt of
the Certificated Note through a
broker's receipt and will keep a
copy of the Certificated Note.
Delivery of the Certificated Note
will be made only against such
acknowledgment of receipt. Upon
determination that the Certificated
Note has been authorized, delivered
and completed as aforementioned, the
Offering Agent will wire the net
proceeds of the Certificated Note
after deduction of its applicable
commission to the Company pursuant
to the standard wire instructions
given by the Company.
E. In the case of a Certificated Note
sold through an Offering Agent, as
agent, the Offering Agent will
deliver such Certificated Note
(with the confirmation), as well as
a copy of
B-19
<PAGE>
the Prospectus and any applicable
Pricing Supplement received from the
Trustee to the purchaser against
payment in immediately available
funds.
F. The Trustee will send a copy of
such Certificated Note to the
Company.
Settlement Procedures
Timetable: For offers to purchase Certified Notes
accepted by the Company, Settlement
Procedures "A" through "F" set forth above
shall be completed as soon as possible but
not later than the respective times (New
York City time) set forth below:
SETTLEMENT
PROCEDURE TIME
A 11:00 a.m. on the trade date
or within one hour following
the trade
B 12:00 noon on the trade date
or within one hour following
the trade
C No later than the Business
Day before Settlement Date
D 2:15 p.m. on Settlement Date
E 3:00 p.m. on Settlement Date
F 5:00 p.m. on Settlement Date
Failure to Settle: In the case of Notes sold through the
Offering Agent, as agent, if a purchaser of
a Certificated Note from the Company shall
either fail to accept delivery of or make
payment for such Certificated Note on the
date fixed for settlement, the Offering
Agent will forthwith notify the Trustee and
the Company by telephone, confirmed in
writing, and return such Certificated Note
to the Trustee.
The Trustee, upon receipt of such
Certificated Note from the Offering Agent,
will immediately advise the Company and the
Company will promptly arrange to credit the
account of the Offering Agent in an amount
of immediately available funds equal to the
amount previously paid to the Company by
such Offering Agent in settlement for such
Certificated Note. Such credits will be made
on the Settlement Date if possible, and in
any event not later than the Business Day
following the Settlement Date; provided that
the Company has received notice on the same
day. If such failure shall have occurred for
any reason other than failure by such
Offering Agent to perform its obligations
hereunder or under the Distribution
B-20
<PAGE>
Agreement, the Company will reimburse such
Offering Agent on an equitable basis for its
reasonable loss of the use of funds during
the period when the funds were credited to
the account of the Company. Immediately upon
receipt of such Certificated Note in respect
of which the failure occurred, the Trustee
will cancel and destroy such Certificated
Note, make appropriate entries in its
records to reflect the fact that the Note
was never issued, and accordingly notify in
writing the Company.
B-21
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
-i-
<PAGE>
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
-ii-
<PAGE>
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
-iv-
<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.
- 2 -
<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,
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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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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.
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(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
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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 (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).
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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
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:
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