EXHIBIT 4.3
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FIRST SUPPLEMENTAL INDENTURE
BETWEEN
WPS RESOURCES CORPORATION
AND
STATE STREET BANK AND TRUST COMPANY
DATED AS OF JULY 30, 1998
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.1 Definition of Terms. . . . . . . . . . . . 2
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1 Designation and Principal Amount.. . . . . 3
SECTION 2.2 Maturity.. . . . . . . . . . . . . . . . . 3
SECTION 2.3 Denominations, Form and Payment. . . . . . 3
SECTION 2.4 Global Debenture.. . . . . . . . . . . . . 3
SECTION 2.5 Interest.. . . . . . . . . . . . . . . . . 5
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1 Redemption; Conditions to Redemption.. . . 6
SECTION 3.2 No Sinking Fund. . . . . . . . . . . . . . 6
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1 Extension of Interest Payment Period.. . . 7
SECTION 4.2 Notice of Extension. . . . . . . . . . . . 7
ARTICLE V
EXPENSES
SECTION 5.1 Payment of Expenses. . . . . . . . . . . . 8
SECTION 5.2 Payment Upon Resignation or Removal. . . . 9
ARTICLE VI
FORM OF DEBENTURE
SECTION 6.1 Form of Debenture. . . . . . . . . . . . . 9
ARTICLE VII
COVENANT TO LIST ON EXCHANGE
SECTION 7.1 Listing on Exchange. . . . . . . . . . . . 17
ARTICLE VIII
ORIGINAL ISSUE OF DEBENTURES
SECTION 8.1 Original Issue of Debentures.. . . . . . . 17
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Ratification of Indenture. . . . . . . . . 17
SECTION 9.2 Trustee Not Responsible for Recitals.. . . 17
SECTION 9.3 Governing Law. . . . . . . . . . . . . . . 17
SECTION 9.4 Separability.. . . . . . . . . . . . . . . 18
SECTION 9.5 Counterparts. . . . . . . . . . . . . . . 18
FIRST SUPPLEMENTAL INDENTURE, dated as of July 30, 1998 (the
"First Supplemental Indenture"), between WPS RESOURCES CORPORATION, a
Wisconsin corporation (the "Company"), and STATE STREET BANK AND TRUST
COMPANY, a Massachusetts trust company, not in its individual capacity but
solely as trustee (the "Trustee") under the Indenture dated as of July 30,
1998 between the Company and the Trustee (the "Indenture").
W I T N E S S E T H:
WHEREAS, the Company executed and delivered the Indenture to the
Trustee to provide for the future issuance of the Company's unsecured junior
subordinated debt securities to be issued from time to time in one or more
series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered
as provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its Debt
Securities to be known as its 7.00% Junior Subordinated Deferrable Interest
Debentures due 2038 (the "Debentures"), the form and substance of such
Debentures and the terms, provisions and conditions thereof to be set forth as
provided in the Indenture and this First Supplemental Indenture;
WHEREAS, WPSR Capital Trust I, a Delaware statutory business trust
(the "Trust"), has offered to the public $50,000,000 aggregate stated
liquidation amount of its 7.00% Trust Preferred Securities (the "Trust
Preferred Securities") and has offered to the Company $1,500,000 aggregate
stated liquidation amount of its 7.00% Trust Common Securities, such Trust
Preferred Securities and Trust Common Securities representing undivided
beneficial interests in the assets of the Trust and proposes to invest the
proceeds from such offering, in $51,500,000 aggregate principal amount of the
Debentures; and
WHEREAS, the Company has requested that the Trustee execute and
deliver this First Supplemental Indenture and all requirements necessary to
make this First Supplemental Indenture a valid instrument in accordance with
its terms, and to make the Debentures, when executed by the Company and
authenticated and delivered by the Trustee, the valid obligations of the
Company, have been performed, and the execution and delivery of this First
Supplemental Indenture has been duly authorized in all respects;
NOW THEREFORE, in consideration of the purchase and acceptance of
the Debentures by the holders thereof, and for the purpose of setting forth,
as provided in the Indenture, the form and substance of the Debentures and the
terms, provisions and conditions thereof, the Company covenants and agrees
with the Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definition of Terms.
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Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when
used in this First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental Indenture
has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or
Article of this First Supplemental Indenture;
(e) headings are for convenience of reference only and do not
affect interpretation;
(f) the following terms have the meanings given to them in the
Declaration: (i) Administrative Trustee; (ii) Clearing Agency; (iii) Delaware
Trustee; (iv) Distributions; (v) Investment Company Event; (vi) Pricing
Agreement; (vii) Property Trustee; (viii) Tax Event; (ix) Trust Preferred
Security Certificate; and (x) Underwriting Agreement;
(g) the following terms have the meanings given to them in this
Section 1.1(g):
"Additional Interest" shall have the meaning set forth in
Section 2.5.
"Compounded Interest" shall have the meaning set forth in
Section 4.1.
"Coupon Rate" shall have the meaning set forth in Section 2.5.
"Declaration" means the Amended and Restated Declaration of Trust
of WPSR Capital Trust I, a Delaware statutory business trust, dated as of
July 30, 1998, including the Terms of Securities attached thereto as Annex I.
"Deferred Interest" shall have the meaning set forth in
Section 4.1.
"Extended Interest Payment Period" shall have the meaning set
forth in Section 4.1.
"Global Debenture" shall have the meaning set forth in
Section 2.4.
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"Maturity Date" means the date on which the Debentures mature and
on which the principal shall be due and payable together with all accrued and
unpaid interest thereon including Compounded Interest and Additional Interest,
if any.
"Non Book-Entry Trust Preferred Securities" shall have the meaning
set forth in Section 2.4.
"Redemption Price" shall have the meaning set forth in
Section 3.1.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1 Designation and Principal Amount.
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There is hereby authorized a series of Debt Securities designated
the "7.00% Junior Subordinated Deferrable Interest Debentures due 2038",
limited in aggregate principal amount to $51,500,000, which amount shall be as
set forth in any written order of the Company for the authentication and
delivery of Debentures pursuant to Section 2.4 of the Indenture.
SECTION 2.2 Maturity.
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The Maturity Date is June 30, 2038.
SECTION 2.3 Denominations, Form and Payment.
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The Debentures shall be issuable in denominations of twenty-five
U.S. Dollars ($25) or any integral multiple thereof. Except as provided in
Section 2.4, the Debentures shall be issued in fully registered certificated
form without interest coupons. Principal and interest on the Debentures issued
in certificated form will be payable, the transfer of such Debentures will be
registrable and such Debentures will be exchangeable for Debentures bearing
identical terms and provisions at the office or agency of the Trustee;
provided, however, that payment of interest may be made at the option of the
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Company by check mailed to the holder at such address as shall appear in the
Security Register or by wire transfer to an account appropriately designated
by such holder. Notwithstanding the foregoing, so long as the holder of any
Debentures is the Property Trustee, the payment of the principal of and
interest (including Compounded Interest and Additional Interest, if any) on
such Debentures held by the Property Trustee will be made at such place and to
such account as may be designated by the Property Trustee.
SECTION 2.4 Global Debenture.
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(a) In the event that the Debentures are distributed to holders
of Trust Preferred Securities in liquidation of such holders' interests in the
Trust:
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(i) the Debentures in certificated form may be presented
to the Trustee by the Property Trustee in exchange for a global
Debenture in an aggregate principal amount equal to the aggregate
principal amount of all outstanding Debentures (a "Global Debenture"),
to be registered in the name of the Depositary, or its nominee, and
delivered by the Trustee to the Depositary for crediting to the accounts
of its participants pursuant to the instructions of the Administrative
Trustees. The Company, upon any such presentation, shall execute a
Global Debenture in such aggregate principal amount and deliver the same
to the Trustee for authentication and delivery in accordance with the
Indenture and this First Supplemental Indenture. Payments on the
Debentures issued as a Global Debenture will be made to the Depositary;
and
(ii) if any Trust Preferred Securities are held in non
book-entry certificated form, the Debentures in certificated form may be
presented to the Trustee by the Property Trustee and any Trust Preferred
Security Certificate which represents Trust Preferred Securities other
than Trust Preferred Securities held by the Clearing Agency or its
nominee ("Non Book-Entry Trust Preferred Securities") will be deemed to
represent beneficial interests in Debentures presented to the Trustee by
the Property Trustee having an aggregate principal amount equal to the
aggregate stated liquidation amount of the Non Book-Entry Trust
Preferred Securities until such Trust Preferred Security Certificates
are presented to the Security Registrar for transfer or reissuance, at
which time such Trust Preferred Security Certificates will be cancelled
and a Debenture, registered in the name of the holder of the Trust
Preferred Security Certificate or the transferee of the holder of such
Trust Preferred Security Certificate, as the case may be, with an
aggregate principal amount equal to the aggregate stated liquidation
amount of the Trust Preferred Security Certificate cancelled, will be
executed by the Company and delivered to the Trustee for authentication
and delivery in accordance with the Indenture and this First
Supplemental Indenture. On issue of such Debentures, Debentures with an
equivalent aggregate principal amount that were presented by the
Property Trustee to the Trustee will be deemed to have been cancelled.
(b) A Global Debenture may be transferred, in whole but not in
part, only to another nominee of the Depositary, or to a successor Depositary
selected or approved by the Company or to a nominee of such successor
Depositary.
(c) If at any time the Depositary notifies the Company that it
is unwilling or unable to continue as Depositary or if at any time the
Depositary shall no longer be registered or in good standing under the
Exchange Act, or other applicable statute or regulation, and a successor
Depositary is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such condition, as the case may be,
the Company will execute, and, subject to Article II of the Indenture, the
Trustee, upon written notice from the Company, will authenticate and deliver
the Debentures in definitive registered form, in authorized denominations, and
in an aggregate principal amount equal to the principal amount of the Global
Debenture in
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exchange for such Global Debenture. In addition, the Company may at any time
determine, in its sole discretion, that the Debentures shall no longer be
represented by a Global Debenture. In such event the Company will execute, and
subject to Section 2.11(c) of the Indenture, the Trustee, upon receipt of an
Officers' Certificate evidencing such determination by the Company, will
authenticate and deliver the Debentures in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount
equal to the principal amount of the Global Debenture in exchange for such
Global Debenture. Upon the exchange of the Global Debenture for such
Debentures in definitive registered form without coupons, in authorized
denominations, the Global Debenture shall be cancelled by the Trustee. Such
Debentures in definitive registered form issued in exchange for the Global
Debenture shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Debentures to the Depositary for delivery to the Persons in
whose names such Debentures are so registered.
SECTION 2.5 Interest.
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(a) Each Debenture will bear interest at the rate of 7.00% per
annum (the "Coupon Rate") from the original date of issuance or from the most
recent Interest Payment Date (as hereinafter defined) to which interest has
been paid or duly provided for until the principal thereof becomes due and
payable, and on any overdue principal and (to the extent that payment of such
interest is enforceable under applicable law) on any overdue installment of
interest, at the Coupon Rate, compounded quarterly payable (subject to the
provisions of Article IV) quarterly in arrears on March 31, June 30, September
30 and December 31 of each year (each, an "Interest Payment Date"), commencing
September 30, 1998, to the Person in whose name such Debenture or any
predecessor Debenture is registered, at the close of business on the regular
record date for such interest installment, which, in respect of any Debentures
of which the Property Trustee is the holder of a Global Debenture, shall be
the close of business on the Business Day next preceding that Interest Payment
Date. Notwithstanding the foregoing sentence, if the Trust Preferred
Securities are no longer in book-entry only form or if the Debentures are not
held by the Property Trustee and are not represented by a Global Debenture,
the Company may select a regular record date for such interest installment
which shall be any date not less than three Business Days before an Interest
Payment Date.
(b) The amount of interest payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months. Except as
provided in the following sentence, the amount of interest payable for any
period shorter than a full calendar quarter for which interest is computed
will be computed on the basis of the actual number of days elapsed per 90-day
period in a 360-day year of twelve 30-day months. In the event that any date
on which interest is payable on the Debentures is not a Business Day, then
payment of interest payable on such date will be made on the next succeeding
day which is a Business Day (and without any interest or other payment in
respect of any such delay), except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date.
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(c) If, at any time while the Property Trustee is the holder of
any Debentures, the Trust or the Property Trustee is required to pay any
taxes, duties, assessments or governmental charges of whatever nature (other
than withholding taxes) imposed by the United States, or any other taxing
authority, then, in any case, the Company will pay as additional interest
("Additional Interest") on the Debentures held by the Property Trustee, such
additional amounts as shall be required so that the net amounts received and
retained by the Trust and the Property Trustee after paying such taxes,
duties, assessments or other governmental charges will be equal to the amounts
the Trust and the Property Trustee would have received had no such taxes,
duties, assessments or other governmental charges been imposed.
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1 Redemption; Conditions to Redemption.
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(a) Subject to the provisions of Article III of the Indenture,
the Company shall have the right to redeem the Debentures, (i) on or after
July 30, 2003, in whole at any time or in part from time to time, or (ii) in
the event that a Tax Event or an Investment Company Event shall occur and be
continuing, then prior to July 30, 2003 in whole (but not in part) within 90
days following the occurrence of such Tax Event or Investment Company Event,
upon not less than 30 nor more than 60 days' prior written notice, at a
redemption price (the "Redemption Price") equal to the principal amount of the
Debentures to be redeemed, plus any accrued and unpaid interest, including
Additional Interest, if any, thereon to the date of such redemption (the
"Redemption Date"); provided, however, that the Company shall not redeem the
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Debentures in part unless all accrued but unpaid interest has been paid in
full on all of the Debentures Outstanding for all quarterly interest payment
periods terminating on or prior to the Redemption Date. If the Debentures are
only partially redeemed pursuant to this Section 3.1(a), the Debentures will
be redeemed pro rata or by lot or by any other method utilized by the Trustee;
provided, that if at the time of redemption the Debentures are registered as a
Global Debenture, the Depositary shall determine, in accordance with its
procedures, the principal amount of such Debentures held by each holder of
Debentures to be redeemed.
(b) For so long as the Trust is the Holder of all Outstanding
Debentures, the proceeds of any redemption provided for in this Section 3.1
shall be used by the Trust to redeem Trust Preferred Securities in accordance
with their terms.
(c) If a partial redemption of the Debentures would result in
the delisting of the Trust Preferred Securities issued by the Trust from any
national securities exchange or other organization on which the Trust
Preferred Securities are then listed, the Company shall not be permitted to
effect such partial redemption and may only redeem the Debentures in whole.
SECTION 3.2 No Sinking Fund.
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The Subordinated Debentures are not entitled to the benefit of any
sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1 Extension of Interest Payment Period.
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The Company shall have the right, at any time and from time to
time during the term of the Debentures, to defer payments of interest by
extending the interest payment period of such Debentures for a period not
exceeding 20 consecutive calendar quarters (the "Extended Interest Payment
Period"), during which Extended Interest Payment Period no interest shall be
due and payable; provided that no Extended Interest Payment Period may extend
beyond the Maturity Date. To the extent permitted by applicable law, interest,
the payment of which has been deferred because of the extension of the
interest payment period pursuant to this Section 4.1, will bear interest
thereon at the Coupon Rate compounded quarterly for each quarterly interest
payment period of the Extended Interest Payment Period ("Compounded
Interest"). At the end of the Extended Interest Payment Period, the Company
shall pay all interest accrued and unpaid on the Debentures, including any
Additional Interest and Compounded Interest (together, "Deferred Interest")
that shall be payable to the holders of the Debentures in whose names the
Debentures are registered in the Security Register on the first record date
after the end of the Extended Interest Payment Period. Before the termination
of any Extended Interest Payment Period, the Company may further extend such
period, provided that such period together with all such further extensions
thereof shall not exceed 20 consecutive calendar quarters or extend beyond the
maturity date of the Debentures. Upon the termination of any Extended Interest
Payment Period and upon the payment of all Deferred Interest then due, the
Company may commence a new Extended Interest Payment Period, subject to the
foregoing requirements. No interest shall be due and payable during an
Extended Interest Payment Period, except at the end thereof, but the Company
may prepay at any time all or any portion of the interest accrued during an
Extended Interest Payment Period.
SECTION 4.2 Notice of Extension.
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(a) If the Property Trustee is the only registered holder of the
Debentures at the time the Company elects an Extended Interest Payment Period,
the Company shall give written notice to the Administrative Trustees and the
Property Trustee of its election of such Extended Interest Payment Period at
least one Business Day before the earlier of (i) the next succeeding date on
which Distributions on the Trust Securities issued by the Trust are payable,
or (ii) the date the Trust is required to give notice of the record date, or
the date such Distributions are payable, to the New York Stock Exchange or any
other applicable self-regulatory organization or to holders of the Trust
Preferred Securities, but in any event at least one Business Day before such
record date.
(b) If the Property Trustee is not the only holder of the
Debentures at the time the Company elects an Extended Interest Payment Period,
the Company shall give the holders of
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the Debentures and the Trustee written notice of its election of such
Extended Interest Payment Period at least 10 Business Days before the earlier
of (i) the next succeeding Interest Payment Date, or (ii) the date the Company
is required to give notice of the record or payment date of such interest
payment to any applicable self-regulatory organization or to holders of the
Debentures, but in any event at least two Business Days before such record
date.
(c) The quarterly interest payment period in which any notice is
given pursuant to paragraphs (a) or (b) of this Section 4.2 shall be counted
as one of the 20 consecutive calendar quarters permitted in the maximum
Extended Interest Payment Period permitted under Section 4.1.
ARTICLE V
EXPENSES
SECTION 5.1 Payment of Expenses.
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(a) In connection with the offering, sale and issuance of the
Debentures to the Property Trustee and in connection with the sale of the
Trust Securities by the Trust, the Company, in its capacity as borrower with
respect to the Debentures, shall:
(1) pay all costs and expenses relating to the offering,
sale and issuance of the Debentures, including commissions to the
underwriters payable pursuant to the Underwriting Agreement and
compensation of the Trustee under the Indenture in accordance with the
provisions of Section 7.6 of the Indenture;
(2) pay all costs and expenses of the Trust (including,
but not limited to, costs and expenses relating to the organization of
the Trust, the offering, sale and issuance of the Trust Securities
(including commissions to the underwriters in connection therewith), the
fees and expenses of the Property Trustee and the Delaware Trustee, the
costs and expenses relating to the operation of the Trust, including
without limitation, costs and expenses of accountants, attorneys,
statistical or bookkeeping services, expenses for printing and engraving
and computing or accounting equipment, paying agent(s), registrar(s),
transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in
connection with the acquisition, financing, and disposition of Trust
assets); and
(3) pay any and all taxes (other than United States
withholding taxes attributable to the Trust or its assets) and all
liabilities, costs and expenses with respect to such taxes of the Trust.
(b) The obligations of the Company under paragraphs (a)(2) and
(a)(3) of this Section 5.1 are for the benefit of, and shall be enforceable
by, any person to whom any such liabilities, costs, expenses, and taxes are
owed (a "Creditor"), whether or not such Creditor has received notice thereof.
Any such Creditor may enforce such obligations of the Company directly
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against the Company, and the Company irrevocably waives any right or remedy to
require that any such Creditor take any action against the Trust or any other
person before proceeding against the Company. The Company shall execute such
additional agreements as may be necessary or desirable to give full effect to
the provisions of this Section 5.1(b).
SECTION 5.2 Payment Upon Resignation or Removal.
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Upon termination of this First Supplemental Indenture or the
Indenture or the removal or resignation of the Trustee pursuant to Section
7.10 of the Indenture, the Company shall pay to the Trustee all amounts
accrued and owing to the Trustee to the date of such termination, removal or
resignation. Upon termination of the Declaration or the removal or resignation
of the Delaware Trustee or the Property Trustee, as the case may be, pursuant
to Section 5.6 of the Declaration, the Company shall pay to the Delaware
Trustee or Property Trustee, as applicable, all amounts accrued and owing to
such Trustee to the date of such termination, removal or resignation.
ARTICLE VI
FORM OF DEBENTURE
SECTION 6.1 Form of Debenture.
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The Debentures and the Trustee's Certificate of Authentication to
be endorsed thereon are to be substantially in the following forms:
(FORM OF FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT - This
Debenture is a Global Debenture within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary. This Debenture is exchangeable for Debentures
registered in the name of a person other than the Depositary or its nominee
only in the limited circumstances described in the Indenture, and no transfer
of this Debenture (other than a transfer of this Debenture as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary) may be registered except
in limited circumstances.
Unless this Debenture is presented by an authorized representative
of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) to the
issuer or its agent for registration of transfer, exchange or payment, and any
Debenture issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the registered
owner hereof, Cede & Co., has an interest herein.]
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No.
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WPS RESOURCES CORPORATION
7.00% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE
DUE 2038
WPS Resources Corporation, a Wisconsin corporation (the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to , or
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registered assigns, the principal sum of $ on June 30, 2038, and to
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pay interest on said principal sum from July 30, 1998 or from the most recent
interest payment date (each such date, an "Interest Payment Date") to which
interest has been paid or duly provided for, quarterly (subject to deferral as
set forth herein) in arrears on March 31, June 30, September 30 and December
31 of each year commencing , 199 , at the rate of 7.00% per annum
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until the principal hereof shall have become due and payable, plus Additional
Interest, if any, and on any overdue principal and (without duplication and to
the extent that payment of such interest is enforceable under applicable law)
on any overdue installment of interest at the same rate per annum compounded
quarterly. The amount of interest payable on any Interest Payment Date shall
be computed on the basis of a 360-day year of twelve 30-day months. The amount
of interest payable for any period shorter than a full quarterly interest
payment period for which interest is computed will be computed on the basis of
actual number of days elapsed in a 360-day year of twelve 30-day months. In
the event that any date on which interest is payable on this Debenture is not
a Business Day, then payment of interest payable on such date will be made on
the next succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay), except that, if such Business Day
is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and
effect as if made on such date. The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the person in whose name this Debenture
(or one or more Predecessor Securities, as defined in said Indenture) is
registered at the close of business on the regular record date for such
interest installment, which shall be the close of business on the business day
next preceding such Interest Payment Date. [IF THE TRUST PREFERRED SECURITIES
ARE NO LONGER REPRESENTED BY A GLOBAL CERTIFICATE OR IF THE DEBENTURES ARE NOT
HELD BY THE PROPERTY TRUSTEE AND ARE NOT REPRESENTED BY A GLOBAL DEBENTURE --
which shall be the close of business on [insert regular record date selected
by the Company in accordance with Section 2.5].] Any such interest installment
not punctually paid or duly provided for shall forthwith cease to be payable
to the registered holders on such regular record date and may be paid to the
Person in whose name this Debenture (or one or more Predecessor Securities) is
registered at the close of business on a special record date to be fixed by
the Trustee for the payment of such defaulted interest, notice of which shall
be given to the registered holders of this series of Debentures not less than
10 days prior to such special record date, or may be paid at any time in any
other lawful manner not inconsistent with the requirements
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of any securities exchange on which the Debentures may be listed, and upon
such notice as may be required by such exchange, all as more fully provided in
the Indenture. The principal of (and premium, if any) and the interest on this
Debenture shall be payable at the office or agency of the Trustee maintained
for that purpose in any coin or currency of the United States of America that
at the time of payment is legal tender for payment of public and private
debts; provided, however, that payment of interest may be made at the option
of the Company by check mailed to the registered holder at such address as
shall appear in the Security Register or by wire transfer to an account
appropriately designated by such holder. Notwithstanding the foregoing, so
long as the holder of this Debenture is the Property Trustee, the payment of
the principal of and interest on this Debenture will be made at such place and
to such account as may be designated by the Property Trustee.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness of the Company, and this
Debenture is issued subject to the provisions of the Indenture with respect
thereto. Each holder of this Debenture, by accepting the same, (a) agrees to
and shall be bound by such provisions, (b) authorizes and directs the Trustee
on his or her behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination so provided, and (c) appoints the
Trustee his or her attorney-in-fact for any and all such purposes. Each holder
hereof, by his or her acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Indebtedness of the Company, whether now
outstanding or hereafter incurred, and waives reliance by each such holder
upon said provisions.
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This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any
purpose until the Certificate of Authentication hereon shall have been signed
by or on behalf of the Trustee.
The provisions of this Debenture are continued on the reverse side
hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
Dated
----------------------------
WPS RESOURCES CORPORATION
By:
-------------------------------
Name:
Title:
Attest:
By:
-----------------------------
Name:
Title:
12
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of Debentures
described in the within-mentioned Indenture.
STATE STREET BANK AND TRUST COMPANY or
-------------------------------
as Trustee as Authenticating Agent
By By
------------------------------- -------------------------------
Authorized Signatory Authorized Signatory
13
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Debentures of
the Company (herein sometimes referred to as the "Debentures"), specified in
the Indenture, all issued or to be issued in one or more series under and
pursuant to an Indenture dated as of July 30, 1998, duly executed and
delivered between the Company and State Street Bank and Trust Company, as
Trustee (the "Trustee"), as supplemented by the First Supplemented Indenture
dated as of July 30, 1998, between the Company and the Trustee (the Indenture
as so supplemented, the "Indenture"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the holders of the Debentures. By the terms of the
Indenture, the Debentures are issuable in series that may vary as to amount,
date of maturity, rate of interest and in other respects as provided in the
Indenture. This series of Debentures is limited in aggregate principal amount
as specified in said First Supplemental Indenture.
Subject to the provisions of Article III of the Indenture, the
Company has the right to redeem this Debenture (i) on or after July 30, 2003,
in whole at any time or in part from time to time, or (ii) in the event that a
Tax Event or Investment Company Event (as defined in the First Supplemental
Indenture) shall occur and be continuing, then prior to July 30, 2003, in
whole (but not in part) within 90 days following the occurrence of such Tax
Event or Investment Company Event upon not less than 30 nor more than 60 days'
prior written notice, at a redemption price (the "Redemption Price"), equal to
the principal amount of the Debentures to be redeemed plus any accrued and
unpaid interest, including Additional Interest, if any, thereon to the date of
such redemption (the "Redemption Date"); provided, however, that the Company
-------- -------
shall not redeem the Debentures in part unless all accrued but unpaid interest
has been paid in full on all of the Debentures for all quarterly interest
payment periods terminating on or prior to the Redemption Date.
If the Debentures are only partially redeemed by the Company, the
Debentures will be redeemed pro rata or by lot or by any other method utilized
by the Trustee; provided that if, at the time of redemption, the Debentures
are registered as a Global Debenture, the Depositary shall determine the
principal amount of such Debentures held by each holder to be redeemed in
accordance with its procedures.
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures of this series for the unredeemed portion hereof will
be issued in the name of the holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall
have occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become immediately due and payable,
in the manner, with the effect and subject to the conditions provided in the
Indenture.
14
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the Debentures of each series affected at the
time Outstanding, as defined in the Indenture, to execute supplemental
indentures for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or of modifying in any manner the rights of the holders
of the Debentures; provided, however, that no such supplemental indenture
shall (i) extend the fixed maturity of any Debentures of any series, or reduce
the principal amount thereof, or reduce the rate or extend the time of payment
of interest thereon, or reduce any premium payable upon the redemption
thereof, without the consent of the holder of each Debenture so affected, or
(ii) reduce the aforesaid percentage of Debentures, the holders of which are
required to consent to any such supplemental indenture, without the consent of
the holders of each Debenture then Outstanding and affected thereby. The
Indenture also contains provisions permitting the holders of a majority in
aggregate principal amount of the Debentures of any series at the time
Outstanding affected thereby, on behalf of all of the holders of the
Debentures of such series, to waive any past default in the performance of any
of the covenants contained in the Indenture, or established pursuant to the
Indenture with respect to such series, and its consequences, except a default
in the payment of the principal of or premium, if any, or interest on any of
the Debentures of such series. Any such consent or waiver by the registered
holder of this Debenture (unless revoked as provided in the Indenture) shall
be conclusive and binding upon such holder and upon all future holders and
owners of this Debenture and of any Debenture issued in exchange herefor or in
place hereof (whether by registration of transfer or otherwise), irrespective
of whether or not any notation of such consent or waiver is made upon this
Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Debenture at the time and place and at
the rate and in the money herein prescribed.
The Company shall have the right at any time during the term of
the Debentures and from time to time to extend the interest payment period of
such Debentures for up to 20 consecutive calendar quarters (an "Extended
Interest Payment Period"), at the end of which period the Company shall pay
all interest then accrued and unpaid (together with interest thereon at the
rate specified for the Debentures to the extent that payment of such interest
is enforceable under applicable law); provided that no Extended Interest
Payment Date may extend beyond the maturity date of the Debentures. Before the
termination of any such Extended Interest Payment Period, the Company may
further extend such Extended Interest Payment Period, provided that such
Extended Interest Payment Period together with all such further extensions
thereof shall not exceed 20 consecutive calendar quarters. At the termination
of any such Extended Interest Payment Period and upon the payment of all
accrued and unpaid interest and any additional amounts then due, the Company
may commence a new Extended Interest Payment Period.
As provided in the Indenture and subject to certain limitations
therein set forth, this Debenture is transferable by the registered holder
hereof on the Security Register of the Company,
15
upon surrender of this Debenture for registration of transfer at the Corporate
Trust Office of the Trustee or such other location designated by the Company
pursuant to the Indenture accompanied by a written instrument or instruments
of transfer in form satisfactory to the Company or the Trustee duly executed
by the registered holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Debentures of authorized denominations and for
the same aggregate principal amount and series will be issued to the
designated transferee or transferees. No service charge will be made for any
such transfer, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any paying agent and the Security
Registrar may deem and treat the registered holder hereof as the absolute
owner hereof (whether or not this Debenture shall be overdue and
notwithstanding any notice of ownership or writing hereon made by anyone other
than the Security Registrar) for the purpose of receiving payment of or on
account of the principal hereof and premium, if any, and interest due hereon
and for all other purposes, and neither the Company nor the Trustee nor any
paying agent nor any Security Registrar shall be affected by any notice to the
contrary.
No recourse shall be had for the payment of the principal of or
the interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, shareholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance hereof,
expressly waived and released.
The Debentures of this series are issuable only in registered form
without coupons in denominations of $25 and any integral multiple thereof.
[This Global Debenture is exchangeable for Debentures in definitive form only
under certain limited circumstances set forth in the Indenture. Debentures of
this series so issued are issuable only in registered form without coupons in
denominations of $25 and any integral multiple thereof.] As provided in the
Indenture and subject to certain limitations herein and therein set forth,
Debentures of this series so issued are exchangeable for a like aggregate
principal amount of Debentures of this series of a different authorized
denomination, as requested by the holder surrendering the same.
All terms used in this Debenture that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
16
ARTICLE VII
COVENANT TO LIST ON EXCHANGE
SECTION 7.1 Listing on Exchange.
-------------------
If the Debentures are to be issued as a Global Security in
connection with the distribution of the Debentures to the Holders of the Trust
Preferred Securities issued by the Trust upon the dissolution of the Trust,
the Company will use its best efforts to list such Debentures on the New York
Stock Exchange or on such other exchange on which the Trust Preferred
Securities are then listed.
ARTICLE VIII
ORIGINAL ISSUE OF DEBENTURES
SECTION 8.1 Original Issue of Debentures.
----------------------------
Debentures in the aggregate principal amount of $51,500,000 may,
upon execution of this First Supplemental Indenture, be executed by the
Company and delivered to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver said Debentures to or upon the written
order of the Company, signed by its Chairman, President, or any Vice President
and its Treasurer or an Assistant Treasurer, without any further action by the
Company.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Ratification of Indenture.
-------------------------
The Indenture, as supplemented by this First Supplemental
Indenture, is in all respects ratified and confirmed, and this First
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
SECTION 9.2 Trustee Not Responsible for Recitals.
------------------------------------
The recitals herein contained are made by the Company and not by
the Trustee, and the Trustee assumes no responsibility for the correctness
thereof. The Trustee makes no representation as to the validity or sufficiency
of this First Supplemental Indenture.
SECTION 9.3 Governing Law.
-------------
This First Supplemental Indenture and each Debenture shall be
deemed to be a contract made under the internal laws of the State of New York,
and for all purposes shall be construed in accordance with the laws of said
State.
17
SECTION 9.4 Separability.
------------
In case any one or more of the provisions contained in this First
Supplemental Indenture or in the Debentures shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provisions of this First
Supplemental Indenture or of the Debentures, but this First Supplemental
Indenture and the Debentures shall be construed as if such invalid or illegal
or unenforceable provision had never been contained herein or therein.
SECTION 9.5 Counterparts.
------------
This First Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed on the date or dates indicated in
the acknowledgments and as of the day and year first above written.
WPS RESOURCES CORPORATION
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------
Title: Chairman, President and
--------------------------------
Chief Executive Officer
--------------------------------
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity
but solely as Trustee
By: /s/ Xxxx X. Xxxxx
-----------------
Name: Xxxx X. Xxxxx
Title: Vice President
18
STATE OF WISCONSIN )
) SS:
COUNTY OF XXXXX )
On the 27th day of July, 1998, before me personally came
Xxxxx X. Xxxxxx to me known, who, being by me duly sworn, did depose and say
that he is the Chairman, President and Chief Executive Officer of
WPS RESOURCES CORPORATION, one of the corporations described in and which
executed the above instrument, and that he signed his name thereto by
authority of the Board of Directors of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
seal of office this 27th day of July, 1998.
/s/ Xxxxx X. Xxxxxx
----------------------------------------
Notary Public
STATE OF WISCONSIN )
) SS:
COUNTY OF MILWAUKEE )
On the 29th day of July, 1998, before me personally came
Xxxx X. Xxxxx to me known, who, being by me duly sworn, did depose and say
he is Vice President of STATE STREET BANK AND TRUST COMPANY, one of the
corporations described in and which executed the above instrument, and that he
signed his name thereto by authority of the Board of Directors of said
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
seal of office this 29th day of July, 1998.
/s/ Xxxx X. Xxxxxxx
----------------------------------------
Notary Public
19
