Securities and Exchange Commission
Washington, D.C. 20549
FORM 10-Q
(Mark One)
/X/ Quarterly Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the quarterly period ended March 31, 1996
or
/ / Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
Commission File No. 1-3548
Minnesota Power & Light Company
A Minnesota Corporation
IRS Employer Identification No. 41-0418150
30 West Superior Street
Duluth, Minnesota 55802
Telephone - (218) 722-2641
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
----- -----
Common Stock, no par value,
31,673,778 shares outstanding
as of April 30, 1996
Minnesota Power & Light Company
Index
Page
Part I. Financial Information
Item 1. Financial Statements
Consolidated Balance Sheet -
March 31, 1996 and December 31, 1995 1
Consolidated Statement of Income -
Quarter ended March 31, 1996 and 1995 2
Consolidated Statement of Cash Flows -
Quarter ended March 31, 1996 and 1995 3
Notes to Consolidated Financial Statements 4
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations 8
Part II. Other Information
Item 5. Other Information 10
Item 6. Exhibits and Reports on Form 8-K 11
Signatures 12
Definitions
The following abbreviations or acronyms are used in the text.
Abbreviation
or Acronym Term
- -------------------- ------------------------------------------------------
1995 Form 10-K Minnesota Power's Annual Report on Form 10-K for
the Year Ended December 31, 1995
ADESA ADESA Corporation
Capital Re Capital Re Corporation
Company Minnesota Power & Light Company and its Subsidiaries
CPI Consolidated Papers, Inc.
DRIP Automatic Dividend Reinvestment and Stock Purchase Plan
ESOP Employee Stock Ownership Plan
FERC Federal Energy Regulatory Commission
Heater Heater Utilities, Inc.
Lehigh Lehigh Acquisition Corporation
Minnesota Power Minnesota Power & Light Company and its Subsidiaries
MW Megawatt(s)
NOPR Notice of Proposed Rulemaking
QUIPS Quarterly Income Preferred Securities
Seabrook Heater of Seabrook, Inc.
Square Butte Square Butte Electric Cooperative
SSU Southern States Utilities, Inc.
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Minnesota Power
Consolidated Balance Sheet
In Thousands
March 31, December 31,
1996 1995
Unaudited Audited
- --------------------------------------------------------------------------------
Assets
Plant and Other Assets
Electric operations $ 802,417 $ 800,477
Water operations 316,807 323,182
Automobile auctions 134,043 123,632
Investments 196,279 201,360
----------- -----------
Total plant and other assets 1,449,546 1,448,651
----------- -----------
Current Assets
Cash and cash equivalents 60,270 31,577
Trading securities 45,955 40,007
Trade accounts receivable (less reserve
of $3,716 and $3,325) 173,207 128,072
Notes and other accounts receivable 18,172 12,220
Fuel, material and supplies 22,799 26,383
Prepayments and other 14,213 13,706
----------- -----------
Total current assets 334,616 251,965
----------- -----------
Deferred Charges
Regulatory 82,946 88,631
Other 26,438 25,037
----------- -----------
Total deferred charges 109,384 113,668
----------- -----------
Intangible Assets
Goodwill 121,124 120,245
Other 13,038 13,096
----------- -----------
Total intangible assets 134,162 133,341
----------- -----------
Total Assets $ 2,027,708 $ 1,947,625
- --------------------------------------------------------------------------------
Capitalization and Liabilities
Capitalization
Common stock without par value,
65,000,000 shares authorized
31,647,679 and 31,467,650
shares outstanding $ 379,925 $ 377,684
Unearned ESOP shares (71,964) (72,882)
Net unrealized gain on securities
investments 819 3,206
Cumulative translation adjustment (191) (177)
Retained earnings 278,665 276,241
----------- -----------
Total common stock equity 587,254 584,072
Cumulative preferred stock 28,547 28,547
Redeemable serial preferred stock 20,000 20,000
Company obligated mandatorily
redeemable preferred securities
of MP&L Capital I 75,000 -
Long-term debt 576,362 639,548
----------- -----------
Total capitalization 1,287,163 1,272,167
----------- -----------
Current Liabilities
Accounts payable 101,615 68,083
Accrued taxes 62,334 40,999
Accrued interest and dividends 9,744 14,471
Notes payable 45,096 96,218
Long-term debt due within one year 68,821 9,743
Other 35,470 27,292
----------- -----------
Total current liabilities 323,080 256,806
----------- -----------
Deferred Credits
Accumulated deferred income taxes 162,532 164,737
Contributions in aid of construction 96,467 98,167
Regulatory 57,221 57,950
Other 101,245 97,798
----------- -----------
Total deferred credits 417,465 418,652
----------- -----------
Total Capitalization and Liabilities $ 2,027,708 $ 1,947,625
- --------------------------------------------------------------------------------
The accompanying notes are an integral part of this statement.
-1-
Minnesota Power
Consolidated Statement of Income
In Thousands Except Per Share Amounts - Unaudited
Quarter Ended
March 31,
1996 1995
- --------------------------------------------------------------------------------
Operating Revenue and Income
Electric operations $ 131,501 $ 120,754
Water operations 19,227 15,600
Automobile auctions 39,693 -
Investments 12,255 10,332
----------- -----------
Total operating revenue and income 202,676 146,686
----------- -----------
Operating Expenses
Fuel and purchased power 43,643 40,310
Operations 86,030 62,142
Administrative and general 33,792 18,459
Interest expense 14,160 11,100
----------- -----------
Total operating expenses 177,625 132,011
----------- -----------
Income (Loss) from Equity Investments 3,777 (6,271)
----------- -----------
Operating Income from Continuing Operations 28,828 8,404
Income Tax Expense (Benefit) 10,324 (15,401)
----------- -----------
Income from Continuing Operations 18,504 23,805
Income from Discontinued Operations - 1,652
----------- -----------
Net Income 18,504 25,457
Dividends on Preferred Stock 800 800
Distributions on Company Obligated
Mandatorily Redeemable Preferred
Securities of MP&L Capital I 201 -
----------- -----------
Earnings Available for Common Stock $ 17,503 $ 24,657
=========== ===========
Average Shares of Common Stock 28,786 28,368
Earnings Per Share of Common Stock
Continuing operations $ .61 $ .81
Discontinued operations - .06
----- -----
Total $ .61 $ .87
===== =====
Dividends Per Share of Common Stock $ .51 $ .51
- --------------------------------------------------------------------------------
The accompanying notes are an integral part of this statement.
-2-
Minnesota Power
Consolidated Statement of Cash Flows
In Thousands - Unaudited
Quarter Ended
March 31,
1996 1995
- --------------------------------------------------------------------------------
Operating Activities
Net income $ 18,504 $ 25,457
Depreciation and amortization 16,216 13,766
Deferred income taxes (742) (17,415)
Deferred investment tax credits (623) (620)
Pre-tax gain on sale of plant (1,073) -
Changes in operating assets and liabilities
Trading securities (5,948) 2,336
Notes and accounts receivable (45,776) 8,763
Fuel, material and supplies 3,584 (1,613)
Accounts payable 33,532 (7,052)
Other current assets and liabilities 24,078 16,104
Other - net 5,342 3,698
--------- --------
Cash from operating activities 47,094 43,424
--------- --------
Investing Activities
Proceeds from sale of investments in
securities 7,849 26,466
Additions to investments (4,449) (20,042)
Additions to plant (25,427) (17,027)
Changes to other assets - net 250 1,035
--------- --------
Cash for investing activities (21,777) (9,568)
--------- --------
Financing Activities
Issuance of common stock 4,546 829
Issuance of long-term debt 77,108 305
Issuance of Company obligated mandatorily
redeemable preferred securities of
MP&L Capital I - net 72,638 -
Changes in notes payable (53,821) (23,931)
Reductions of long-term debt (81,217) (989)
Dividends on preferred and common stock (15,878) (15,720)
--------- --------
Cash from (for) financing activities 3,376 (39,506)
--------- --------
Change in Cash and Cash Equivalents 28,693 (5,650)
Cash and Cash Equivalents at Beginning of Period 31,577 27,001
--------- --------
Cash and Cash Equivalents at End of Period $ 60,270 $ 21,351
========= ========
Supplemental Cash Flow Information
Cash paid during the period for
Interest (net of capitalized) $ 17,781 $ 16,616
Income taxes $ 2,844 $ 982
- --------------------------------------------------------------------------------
The accompanying notes are an integral part of this statement.
-3-
Notes to Consolidated Financial Statements
The accompanying unaudited consolidated financial statements and notes should be
read in conjunction with the Company's 1995 Form 10-K. In the opinion of the
Company, all adjustments necessary for a fair statement of the results for the
interim periods have been included. The results of operations for an interim
period may not give a true indication of results for the year. The income
statement information for prior periods has been reclassified to reflect the
discontinuance of the paper and pulp business. Financial statement information
may not be comparable between periods due to the purchase of ADESA on July 1,
1995.
Note 1. Business Segments
In Thousands
Investments
---------------------- Corporate
Electric Water Automobile Portfolio & Real Charges
Consolidated Operations Operations Auctions Reinsurance Estate & Other
------------ ----------- ---------- ------------ ----------- ------ ----------
Quarter Ended March 31, 1996
- ----------------------------
Operating revenue and income $ 202,676 $ 131,501 $ 19,227 $ 39,693 $ 3,869 $ 8,676 $ (290)
Operation and other expense 147,249 95,307 11,518 34,202 523 3,213 2,486
Depreciation and amortization
expense 16,216 10,499 3,137 2,550 - 30 -
Interest expense 14,160 5,674 3,190 1,291 1 2 4,002
Income from equity investments 3,777 - - - 3,777 - -
---------- ---------- ---------- ---------- ---------- ---------- ---------
Operating income
from continuing operations 28,828 20,021 1,382 1,650 7,122 5,431 (6,778)
Income tax expense (benefit) 10,324 7,742 449 662 2,322 2,363 (3,214)
---------- ---------- ---------- ---------- ---------- ---------- ---------
Net income $ 18,504 $ 12,279 $ 933 $ 988 $ 4,800 $ 3,068 $ (3,564)
========== ========== ========== ========== ========== ========== =========
Total assets $2,027,708 $ 990,018 $ 340,312 $ 429,604 $ 210,973 $ 55,225 $ 1,576
Accumulated depreciation $ 631,694 $ 518,311 $ 110,536 $ 2,847 - - -
Accumulated amortization $ 4,195 - - $ 3,398 - $ 797 -
Construction work in progress $ 55,491 $ 27,715 - $ 27,776 - - -
Quarter Ended March 31, 1995
- ----------------------------
Operating revenue and income $ 146,686 $ 120,754 $ 15,600 - $ 6,739 $ 4,265 $ (672)
Operation and other expense 108,310 87,037 11,055 - 935 7,134 2,149
Depreciation and amortization
expense 12,601 10,021 2,520 - - 60 -
Interest expense 11,100 5,497 2,463 - 2 2 3,136
Income (loss) from
equity investments (6,271) - - - 2,257 - (8,528)
---------- ---------- ---------- ---------- ---------- ---------- ---------
Operating income (loss)
from continuing operations 8,404 18,199 (438) - 8,059 (2,931) (14,485)
Income tax expense (benefit) (15,401) 7,782 (395) - 1,775 (18,015) (6,548)
---------- ---------- ---------- ---------- ---------- ---------- ---------
Income (loss) from
continuing operations 23,805 $ 10,417 $ (43) - $ 6,284 $ 15,084 $ (7,937)
========== ========== ========== ========== ========== =========
Income from
discontinued operations 1,652
----------
Net income $ 25,457
==========
Total assets $1,786,626 $ 992,699 $ 310,776 - $ 274,383 $ 34,443 $ 362
Accumulated depreciation $ 598,644 $ 501,545 $ 91,334 - - - -
Accumulated amortization $ 507 - - - - $ 507 -
Construction work in progress $ 37,155 $ 30,432 $ 6,723 - - - -
- --------------------------------
Purchased July 1, 1995.
Includes an $8.5 million pre-tax provision for exiting the equipment manufacturing business.
Includes $3.7 million of minority interest relating to the recognition of tax benefits. (See Note 4.)
Includes $18.4 million of tax benefits. (See Note 4.)
Includes $174 million related to operations discontinued in 1995.
Includes $5.8 million related to operations discontinued in 1995.
-4-
Note 2. Securities Investments
March 31, 1996 December 31, 1995
------------------------------------- ----------------------------
Gross Unrealized Gross Unrealized
---------------- Fair ---------------- Fair
Summary of Securities Cost Gain (Loss) Value Cost Gain (Loss) Value
- -------------------------------------------------------------------------------------------------------------------
In Thousands
Trading $ 45,955 $ 40,007
======== =========
Available-for-sale
Common stock $ 2,599 $ - $ (519) $ 2,080 $ 2,599 $ - $ (451) $ 2,148
Preferred stock 59,758 1,617 (2,516) 58,859 64,506 1,969 (3,090) 63,385
------- ------ ------- -------- -------- ------ ------- ---------
$62,357 $1,617 $(3,035) $ 60,939 $ 67,105 $1,969 $(3,541) $ 65,533
======= ====== ======= ======== ======== ====== ======= =========
The net unrealized gain on securities investments on the balance sheet also
includes the Company's share of Capital Re's unrealized holding gains of $1.7
million at March 31, 1996 and $4.1 million at December 31, 1995.
Quarter Ended
March 31,
1996 1995
- -------------------------------------------------------------------------------
In Thousands
Trading securities
Change in net unrealized holding gain
included in earnings $ 856 $ 778
Available-for-sale securities
Proceeds from sales $ 7,849 $ 26,466
Gross realized gains $ 105 $ 274
Gross realized (losses) $ (367) $ (419)
Note 3. Square Butte Purchased Power Contract
The Company has a contract to purchase power and energy from Square Butte. Under
the terms of the contract which extends through 2007, the Company is purchasing
71 percent of the output from a generating plant which is capable of generating
up to 470 MW. Reductions to about 49 percent of the output are provided for in
the contract and, at the option of Square Butte, could begin after a five-year
advance notice to the Company.
The cost of the power and energy is a proportionate share of Square Butte's
fixed obligations and variable operating costs, based on the percentage of the
total output purchased by the Company. The annual fixed obligations of the
Company to Square Butte are $19.4 million from 1996 through 2000. The variable
operating costs are not incurred unless production takes place. The Company is
responsible for paying all costs and expenses of Square Butte if not paid by
Square Butte when due. These obligations and responsibilities of the Company are
absolute and unconditional whether or not any power is actually delivered to the
Company.
-5-
Note 4. Income Tax Expense
Quarter Ended
March 31,
Schedule of Income Tax Expense (Benefit) 1996 1995
- --------------------------------------------------------------------------------
In Thousands
Charged to continuing operations
Current tax
Federal $ 8,859 $ 5,402
Foreign (101) -
State 2,931 (1,449)
--------- ---------
11,689 3,953
--------- ---------
Deferred tax
Federal (12) (73)
State (730) (261)
--------- ---------
(742) (334)
--------- ---------
Change in valuation allowance - (18,400)
---------
Deferred tax credits (623) (620)
--------- ---------
Income tax - continuing operations 10,324 (15,401)
--------- ---------
Charged to discontinued operations
Current tax
Federal - (106)
State - (17)
--------- ---------
- (123)
--------- ---------
Deferred tax
Federal - 1,018
State - 301
--------- ---------
- 1,319
--------- ---------
Income tax - discontinued operations - 1,196
--------- ---------
Total income tax expense (benefit) $ 10,324 $ (14,205)
========= =========
In March 1995 based on the results of a project which analyzed the economic
feasibility of realizing future tax benefits available to the Company, the board
of directors of Lehigh directed the management of Lehigh to dispose of Lehigh's
assets in a manner that would maximize utilization of tax benefits. Based on
this directive, Lehigh recognized $18.4 million of income in the first quarter
of 1995 by reducing the valuation reserve which offsets deferred tax assets.
Additional unrealized net deferred tax assets resulting from the original
purchase of Lehigh of $8.2 million are included on the Company's balance sheet.
These assets are fully offset by the deferred tax asset valuation allowance
because under Statement of Financial Accounting Standards No. 109, "Accounting
for Income Taxes," it is currently "more likely than not" that the value of
these assets will not be realized. Management reviews the appropriateness of the
valuation allowance quarterly.
-6-
Note 5. Discontinued Operations
On June 30, 1995 Minnesota Power sold its interest in the paper and pulp
business. The financial results of the paper and pulp business, including the
loss on disposition, have been accounted for as discontinued operations.
Quarter Ended
March 31,
Summary of Discontinued Operations 1996 1995
- --------------------------------------------------------------------------------
In Thousands
Operating revenue and income - $ 22,039
=========
Equity in earnings - $ 1,821
=========
Income from operations - $ 2,848
Income tax expense - 1,196
---------
Income from discontinued operations - $ 1,652
=========
The Company is still committed to a maximum guaranty of $95 million to ensure a
portion of a $33.4 million annual lease obligation for paper mill equipment
under an operating lease extending to 2012. The purchaser of the Company's paper
and pulp business, CPI, has agreed to indemnify the Company for any payments the
Company may make as a result of the Company's obligation relating to this
operating lease.
Note 6. Mandatorily Redeemable Preferred Securities of MP&L Capital I
MP&L Capital I (Trust) was established as a wholly owned business trust of the
Company for the purpose of issuing common and preferred securities (Trust
Securities). On March 20, 1996 the Trust publicly issued three million 8.05%
Cumulative Quarterly Income Preferred Securities (QUIPS), representing preferred
beneficial interests in the assets held by the Trust, indirectly resulting in
net proceeds to the Company of $72.6 million. Holders of the QUIPS are entitled
to receive quarterly distributions at an annual rate of 8.05 percent of the
liquidation preference value of $25 per security. The Company is the owner of
all the common trust securities, which constitute approximately 3 percent of the
aggregate liquidation amount of all the Trust Securities. The sole asset of the
Trust is $77.5 million of 8.05% Junior Subordinated Debentures, Series A,
Due 2015 (Subordinated Debentures) issued by the Company, interest on which is
deductible by the Company for income tax purposes. The Trust will use interest
payments received on the Subordinated Debentures it holds to make the
quarterly cash distributions on the QUIPS.
The QUIPS are subject to mandatory redemption upon repayment of the Subordinated
Debentures at maturity or upon redemption. The Company has the option at any
time on or after March 20, 2001, to redeem the Subordinated Debentures, in whole
or in part. The Company also has the option, upon the occurrence of certain
events, (i) to redeem at any time the Subordinated Debentures, in whole but not
in part, which would result in the redemption of all the Trust Securities, or
(ii) to terminate the Trust and cause the pro rata distribution of the
Subordinated Debentures to the holders of the Trust Securities.
In addition to the Company's obligations under the Subordinated Debentures, the
Company has guaranteed, on a subordinated basis, payment of distributions on the
Trust Securities, to the extent the Trust has funds available to pay such
distributions, and has agreed to pay all of the expenses of the Trust (such
additional obligations collectively, the Back-up Undertakings). Considered
together, the Back-up Undertakings constitute a full and unconditional guarantee
by the Company of the Trust's obligations under the QUIPS.
-7-
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations
Minnesota Power has operations in four business segments: (1) electric
operations, which include electric and gas services, and coal mining; (2) water
operations, which include water and wastewater services; (3) automobile
auctions, which also include a finance company and an auto transport company;
and (4) investments, which include real estate operations in Florida, a 21
percent equity investment in a financial guaranty reinsurance company, and a
securities portfolio.
Earnings per share of common stock for the quarter ended March 31, 1996 were 61
cents compared to 87 cents for the quarter ended March 31, 1995. All four
business segments were profitable for the first quarter ended March 31, 1996.
Increased electric sales, a gain in water operations and improvement in real
estate operations, excluding the recognition of tax benefits in 1995, were
contributing factors to 1996 earnings.
Higher earnings in 1995 were attributed to the 52 cent per share recognition of
tax benefits associated with real estate operations. Earnings in 1995 also
reflect an 18 cent per share provision associated with exiting the truck-mounted
lifting equipment business.
Quarter Ended March 31,
Earnings Per Share 1996 1995
- --------------------------------------------------------------------------------
Continuing Operations
Electric Operations $ .41 $ .35
Water Operations .03 .00
Automobile Auctions .03 -
Investments
Portfolio and reinsurance .17 .22
Real estate .11 .53
----- -----
.28 .75
Corporate Charges and Other (.14) (.29)
----- -----
Total Continuing Operations .61 .81
Discontinued Operations - .06
----- -----
Total Earnings Per Share $ .61 $ .87
===== =====
Results of Operations
Comparison of the Quarter Ended March 31, 1996 and 1995.
Electric operations. Operating revenue and income from electric operations were
higher in 1996 compared to 1995 due to a 14 percent increase in total
kilowatt-hours sales. The increase in sales is attributed primarily to the
Company's ability to market energy to other power suppliers. Extreme winter
weather in 1996 compared to the milder winter in 1995 also increased sales.
Revenue from electric sales to taconite customers accounted for 31 percent of
electric operating revenue in 1996 compared to 36 percent in 1995. Electric
sales to paper and other wood-products companies accounted for 11 percent of
electric operating revenue in 1996 and 13 percent in 1995. Sales to other power
suppliers accounted for 5 percent of electric operating revenue in 1996 compared
to only 1 percent in 1995.
Water operations. Operating revenue and income from water operations were higher
in 1996 due to the $1.1 million pre-tax gain from the sale of Seabrook's assets
in South Carolina, the addition of 17,000 new water and wastewater customers as
a result of the December 1995 purchase of the assets of Orange Osceola Utilities
in Florida, and SSU's implementation of a $7.9 million interim rate increase
effective January 23, 1996.
-8-
Automobile Auctions. Automobile auction operations were profitable despite
severe winter weather on the east coast which limited auction sales in January
1996. New auctions began operations at Jacksonville, Florida and Newark, New
Jersey during the first quarter of 1996.
Consolidated operating expenses in 1996 are significantly higher due to the
inclusion of ADESA's operations following its purchase by the Company in July
1995.
Investments.
- Securities Portfolio and Reinsurance. The Company's securities portfolio
and reinsurance performed well in 1996. The portfolio produced less
earnings in 1996 because its balance was smaller as a result of the sale of
a portion of the portfolio to fund the purchase of ADESA.
- Real Estate Operations. Revenue in 1996 includes $3.7 million from the
sale of Lehigh's joint venture in a resort and golf course. In 1995 $18.4
million of tax benefits were recognized by Lehigh. The Company's portion of
the tax benefits reflected as net income was $14.7 million, or 52 cents per
share.
Corporate Charges and Other. In March 1995 the Company recorded a $5 million
provision, lowering earnings per share by 18 cents, in anticipation of exiting
the truck-mounted lifting equipment business.
Discontinued Operations. Income from discontinued operations in 1995 reflects
the operating results of the paper and pulp business which was sold in June
1995.
Liquidity and Financial Position
Reference is made to the Consolidated Statement of Cash Flows for the three
months ended March 31, 1996 and 1995, for purposes of the following discussion.
Automobile auction operations, which were acquired in July 1, 1995, are included
in the three months ended March 31, 1996.
Cash flow activities. Cash from operating activities was affected by a number of
factors representative of normal operations.
Working capital, if and when needed, generally is provided by the sale of
commercial paper. In addition, securities investments can be liquidated to
provide funds for reinvestment in existing businesses or acquisition of new
businesses, and approximately 500,000 original issue shares of common stock are
available for issuance through the DRIP.
MP&L Capital I (Trust) was established as a wholly owned business trust of the
Company for the purpose of issuing common and preferred securities.
On March 20, 1996 the Trust publicly issued three million 8.05%
Cumulative Quarterly Income Preferred Securities (QUIPS), representing preferred
beneficial interests in the assets held by the Trust, indirectly resulting in
net proceeds to the Company of $72.6 million. The net proceeds to the Company
were used to retire approximately $56 million of commercial paper and
approximately $17 million will be used to redeem all of the outstanding
shares of the Company's Serial Preferred Stock, $7.36 Series, on May 13, 1996.
Capital requirements. Consolidated capital expenditures for the three months
ended March 31, 1996 totaled $29.3 million. These expenditures include $11.2
million for electric operations, $3.6 million for water operations and $14.5
million for automobile auction operations. Internally generated funds were the
primary source for funding these expenditures.
-9-
PART II. OTHER INFORMATION
Item 5. Other Information
Reference is made to the Company's 1995 Form 10-K for background information on
the following updates. Unless otherwise indicated, cited references are to the
Company's 1995 Form 10-K.
Ref. Page 9. - Second Full Paragraph and Page 13 - Fourth Full Paragraph
On May 1, 1996 the FERC issued an Order on Rehearing for the St. Louis River
Project (Project). The FERC directed the Company to negotiate with the Fond du
Lac Band of Lake Superior Chippewa a reasonable annual charge for the use of
tribal lands within the Project. With respect to the Company's arguments
regarding the generating capacity that will be lost as a result of certain
license terms and conditions mandated by the FERC to mitigate environment
consequences of the Project, the FERC determined that not enough evidence was
provided to alter the FERC's original analysis of the anticipated impact of such
mandates on the generating capacity. The FERC extended the license term from 30
to 40 years because of the anticipated impact of such mandates. The Company
estimates that the revenue from this Project will be reduced by approximately $1
million on an annual basis as a result of the license terms.
Ref. Page 9. - Last Paragraph
On March 29, 1996 the Public Service Commission of Wisconsin approved a
$451,000, or 1.1 percent, increase in rates, with an 11.6 percent return on
equity for the Company's wholly owned subsidiary Superior Water, Light and Power
Company. Final rates were effective March 30, 1996.
Ref. Page 10. - Fourth Paragraph
On April 24, 1996 the FERC issued two final rules and a NOPR. The first rule,
Order No. 888, addresses both open access to transmission lines for wholesale
transactions and stranded cost issues. The second rule, Order No. 889, requires
utilities to establish electronic systems to share information about available
transmission capacity and establishes standards of conduct. The NOPR, "Capacity
Reservation Open Access Transmission Tariffs," proposes to establish a new
system for utilities to use in reserving capacity on their own and others'
transmission lines. The new and proposed rules are designed to facilitate
competition in the electric industry, lower prices and provide more choices to
energy customers.
In anticipation of the new rules, the Company filed an open access transmission
tariff for wholesale service on April 16, 1996 with the FERC. This filing will
allow the Company to have a current cost-based tariff in place for any new open
access transmission customers requesting service on Minnesota Power's system.
The tariff is expected to be effective 60 days after the filing date with the
revenue subject to refund pending final approval of the rates.
-10-
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
4(a) Amended and Restated Trust Agreement, dated as of March 1, 1996,
relating to MP&L Capital I's 8.05% Cumulative Quarterly Income
Preferred Securities, between the Company, as Depositor, and The
Bank of New York, The Bank of New York (Delaware), Philip R.
Halverson, David G. Gartzke and James K. Vizanko, as Trustees.
4(b) Amendment No. 1, dated April 11, 1996, to Amended and Restated
Trust Agreement, dated as of March 1, 1996, relating to MP&L
Capital I's 8.05% Cumulative Quarterly Income Preferred
Securities.
4(c) Indenture, dated as of March 1, 1996, relating to the Company's
8.05% Junior Subordinated Debentures, Series A, Due 2015, between
the Company and The Bank of New York, as Trustee.
4(d) Guarantee Agreement, dated as of March 1, 1996, relating to MP&L
Capital I's 8.05% Cumulative Quarterly Income Preferred
Securities, between the Company, as Guarantor, and The Bank of New
York, as Trustee.
4(e) Agreement as to Expenses and Liabilities, dated as of March 20,
1996, relating to MP&L Capital I's 8.05% Cumulative Quarterly
Income Preferred Securities, between the Company and MP&L Capital
I.
27 Financial Data Schedule
* 99 The consolidated financial statements of ADESA Corporation for
the quarter ended March 31, 1995 (filed as exhibit 99(b) to Form
8-K dated July 12 ,1995, File No. 1-3548).
- ---------------------------
* Incorporated herein by reference as indicated.
(b) Reports on Form 8-K
Report on Form 8-K dated and filed April 9, 1996 with respect to Item 5.
Other Events.
-11-
Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Minnesota Power & Light Company
-------------------------------
(Registrant)
May 10, 1996 D. G. Gartzke
-------------------------------
D. G. Gartzke
Senior Vice President - Finance
and Chief Financial Officer
May 10, 1996 Mark A. Schober
-------------------------------
Mark A. Schober
Corporate Controller
Exhibit 4(a)
- -------------------------------------------------------------------------------
AMENDED AND RESTATED
TRUST AGREEMENT
between
MINNESOTA POWER & LIGHT COMPANY, as Depositor
and
THE BANK OF NEW YORK,
THE BANK OF NEW YORK (DELAWARE),
PHILIP R. HALVERSON,
DAVID G. GARTZKE,
and
JAMES K. VIZANKO, as Trustees
Dated as of March 1, 1996
MP&L CAPITAL I
- -------------------------------------------------------------------------------
MP&L Capital I
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
- --------------- ----------------
Section 310(a)(1) .............................. 8.07
(a)(2) .............................. 8.07
(a)(3) .............................. 8.09
(a)(4) .............................. Not Applicable
(b) .............................. 8.08
Section 311(a) .............................. 8.13
(b) .............................. 8.13
Section 312(a) .............................. 5.07
(b) .............................. 5.07
(c) .............................. 5.07
Section 313(a) .............................. 8.14(a)
(a)(4) .............................. 8.14(b)
(b) .............................. 8.14(b)
(c) .............................. 8.14(a)
(d) .............................. 8.14(a), 8.14(b)
Section 314(a) .............................. Not Applicable
(b) .............................. Not Applicable
(c)(1) .............................. Not Applicable
(c)(2) .............................. Not Applicable
(c)(3) .............................. Not Applicable
(d) .............................. Not Applicable
(e) .............................. Not Applicable
Section 315(a) .............................. 8.01
(b) .............................. 8.02, 8.14(b)
(c) .............................. 8.01(a)
(d) .............................. 8.01, 8.03
(e) .............................. Not Applicable
Section 316(a) .............................. Not Applicable
(a)(1)(A) .............................. Not Applicable
(a)(1)(B) .............................. Not Applicable
(a)(2) .............................. Not Applicable
(b) .............................. Not Applicable
(c) .............................. Not Applicable
Section 317(a)(1) .............................. Not Applicable
(a)(2) .............................. Not Applicable
(b) .............................. 5.09
Section 318(a) .............................. 10.10
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Trust Agreement.
TABLE OF CONTENTS
ARTICLE I.
Defined Terms
Section 1.01. Definitions....................................... 2
ARTICLE II.
Establishment of the Trust
Section 2.01. Name............................................... 11
Section 2.02. Office of the Delaware Trustee; Principal
Place of Business................................. 11
Section 2.03. Initial Contribution of Trust Property;
Organizational Expenses........................... 11
Section 2.04. Issuance of the Preferred Securities............... 11
Section 2.05. Subscription and Purchase of Debentures;
Issuance of the Common Securities................. 11
Section 2.06. Declaration of Trust; Appointment of Additional
Administrative Trustees .......................... 12
Section 2.07. Authorization to Enter into Certain Transactions... 12
Section 2.08. Assets of Trust.................................... 16
Section 2.09. Title to Trust Property............................ 16
ARTICLE III.
Payment Account
Section 3.01. Payment Account.................................... 16
ARTICLE IV.
Distributions; Redemption
Section 4.01. Distributions...................................... 17
Section 4.02. Redemption......................................... 18
Section 4.03. Subordination of Common Securities................. 20
Section 4.04. Payment Procedures................................. 20
Section 4.05. Tax Returns and Reports............................ 20
Section 4.06. Payments under Indenture........................... 21
ARTICLE V.
Trust Securities Certificates
Section 5.01. Initial Ownership.................................. 21
Section 5.02. The Trust Securities Certificates.................. 21
Section 5.03. Execution and Delivery of Trust Securities
Certificates...................................... 22
Section 5.04. Registration of Transfer and Exchange of
Preferred Securities Certificates ................ 22
Section 5.05. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates .......................... 23
Section 5.06. Persons Deemed Securityholders..................... 23
Section 5.07. Access to List of Securityholders' Names
and Addresses..................................... 23
Section 5.08. Maintenance of Office or Agency.................... 24
Section 5.09. Appointment of Paying Agent........................ 24
Section 5.10. Ownership of Common Securities by Depositor........ 25
Section 5.11. Definitive Preferred Securities Certificates....... 25
Section 5.12. Book-Entry System.................................. 25
Section 5.13. Rights of Securityholders.......................... 26
ARTICLE VI.
Acts of Securityholders; Meetings; Voting
Section 6.01. Limitations on Voting Rights....................... 26
Section 6.02. Notice of Meetings................................. 28
Section 6.03. Meetings of Holders of Preferred Securities........ 28
Section 6.04. Voting Rights...................................... 28
Section 6.05. Proxies, etc....................................... 28
Section 6.06. Securityholder Action by Written Consent........... 29
Section 6.07. Record Date for Voting and Other Purposes.......... 29
Section 6.08. Acts of Securityholders............................ 29
Section 6.09. Inspection of Records.............................. 30
ARTICLE VII.
Representations and Warranties of the Property
Trustee and the Delaware Trustee
Section 7.01. Property Trustee................................... 30
Section 7.02. Delaware Trustee................................... 31
ARTICLE VIII.
The Trustees
Section 8.01. Certain Duties and Responsibilities................ 32
Section 8.02. Notice of Defaults................................. 33
Section 8.03. Certain Rights of Property Trustee................. 33
Section 8.04. Not Responsible for Recitals or Issuance of
Securities........................................ 36
Section 8.05. May Hold Securities................................ 36
Section 8.06. Compensation; Fees; Indemnity...................... 36
Section 8.07. Certain Trustees Required; Eligibility............. 37
Section 8.09. Co-Trustees and Separate Trustee................... 38
Section 8.10. Resignation and Removal; Appointment of Successor.. 39
Section 8.11. Acceptance of Appointment by Successor............. 41
Section 8.12. Merger, Conversion, Consolidation or Succession
to Business....................................... 41
Section 8.13. Preferential Collection of Claims Against
Depositor or Trust................................ 41
Section 8.14. Reports by Property Trustee........................ 42
Section 8.15. Reports to the Property Trustee.................... 42
Section 8.16. Evidence of Compliance With Conditions Precedent... 42
Section 8.17. Number of Trustees................................. 42
Section 8.18. Delegation of Power................................ 43
Section 8.19. Fiduciary Duty..................................... 43
ARTICLE IX.
Termination and Liquidation
Section 9.01. Termination Upon Expiration Date................... 44
Section 9.02. Early Termination.................................. 44
Section 9.03. Termination........................................ 45
Section 9.04. Liquidation........................................ 45
ARTICLE X.
Miscellaneous Provisions
Section 10.01. Guarantee by the Depositor and Assumption of
Obligations.................................. 47
Section 10.02. Limitation of Rights of Securityholders........... 47
Section 10.03. Amendment......................................... 47
Section 10.04. Separability...................................... 49
Section 10.05. Governing Law..................................... 49
Section 10.06. Successors........................................ 49
Section 10.07. Headings.......................................... 49
Section 10.08. Notice and Demand................................. 49
Section 10.09. Agreement Not to Petition......................... 50
Section 10.10. Conflict with Trust Indenture Act................. 50
AMENDED AND RESTATED TRUST AGREEMENT, dated as of March 1,
1996, between (i) Minnesota Power & Light Company, a Minnesota corporation (the
"Depositor"), (ii) The Bank of New York, a banking corporation duly organized
and existing under the laws of New York, as trustee (the "Property Trustee" and,
in its separate capacity and not in its capacity as Property Trustee, the
"Bank"), (iii) The Bank of New York (Delaware), a banking corporation duly
organized under the laws of Delaware, as trustee (the "Delaware Trustee") and
(iv) Philip R. Halverson, David G. Gartzke and James K. Vizanko, each an
individual, as trustee, and each of whose address is c/o Minnesota Power & Light
Company, 30 West Superior Street, Duluth, Minnesota 55802 (each, an
"Administrative Trustee" and collectively the "Administrative Trustees") (the
Property Trustee, the Delaware Trustee and the Administrative Trustees referred
to collectively as the "Trustees") and (v) the several Holders, as hereinafter
defined.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Depositor, the Property Trustee, the Delaware
Trustee and Philip R. Halverson, as the Administrative Trustee, have heretofore
duly declared and established a business trust pursuant to the Delaware Business
Trust Act by the entering into of that certain Trust Agreement, dated as of
February 15, 1996 (the "Original Trust Agreement"), and by the execution by the
Property Trustee, the Delaware Trustee and Philip R. Halverson, as
Administrative Trustee and filing with the Secretary of State of the State of
Delaware of the Certificate of Trust, dated February 15, 1996, a copy of which
is attached as Exhibit A; and
WHEREAS, the Depositor, the Property Trustee, Delaware Trustee
and Philip R. Halverson, as Administrative Trustee, desire to amend and restate
the Original Trust Agreement in its entirety as set forth herein to provide for,
among other things, (i) the acquisition by the Trust from the Depositor of all
of the right, title and interest in the Debentures, (ii) the issuance of the
Common Securities by the Trust to the Depositor, (iii) the issuance of the
Preferred Securities by the Trust and (iv) the appointment of additional
Administrative Trustees of the Trust;
NOW THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, each party, for the benefit of the
other party and for the benefit of the Securityholders, hereby amends and
restates the Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I.
Defined Terms
Section 1.01. Definitions. For all purposes of
this Trust Agreement, except as otherwise expressly provided or unless the
context otherwise requires:
(a) the terms defined in this Article have the
meanings assigned to them in this Article and include the
plural as well as the singular;
(b) all other terms used herein that are defined in
the Trust Indenture Act, either directly or by reference
therein, have the meanings assigned to them therein;
(c) unless the context otherwise requires, any
reference to an "Article" or a "Section" refers to an Article
or a Section, as the case may be, of this Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Trust Agreement as
a whole and not to any particular Article, Section or other
subdivision.
"Act" has the meaning specified in Section 6.08.
"Additional Amount" means, with respect to Trust Securities of
a given Liquidation Amount and/or a given period, the amount of Additional
Interest (as defined in the Subordinated Indenture) paid by the Depositor on a
Like Amount of Debentures for such period.
"Administrative Trustee" means each of the individuals
identified as an "Administrative Trustee" in the preamble to this Trust
Agreement solely in their capacities as Administrative Trustees of the Trust
created hereunder and not in their individual capacities, or such trustee's
successor in interest in such capacity, or any successor trustee appointed as
herein provided.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
-2-
"Bankruptcy Event" means, with respect to any Person:
(i) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or
in respect of such Person under Federal bankruptcy law or any
other applicable Federal or State law, or appointing a
receiver, liquidator, assignee, trustee sequestrator or other
similar official of such Person or of any substantial part of
its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order
unstayed and in effect for a period of 60 consecutive days; or
(ii) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or of the consent by it
to the institution of bankruptcy or insolvency proceedings
against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under Federal
bankruptcy law or any other applicable Federal or State law,
or the consent by it to the filing of such petition or to the
appointment of a receiver, liquidator, assignee, trustee,
sequestrator or similar official of such Person or of any
substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by
it in writing of its inability to pay its debts generally as
they become due.
"Bankruptcy Laws" has the meaning specified in Section 10.09.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Depositor to have been duly
adopted by the Depositor's Board of Directors or a duly authorized committee
thereof and to be in full force and effect on the date of such certification,
and delivered to the appropriate Trustee.
"Business Day" means a day other than (x) a Saturday or a
Sunday, (y) a day on which banks in New York, New York are authorized or
obligated by law or executive order to remain closed or (z) a day on which the
Property Trustee's Corporate Trust Office or the Debenture Trustee's principal
corporate trust office is closed for business.
"Certificate of Trust" has the meaning specified in Section
2.07(d).
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act.
"Closing Date" means the date of delivery of this Trust
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
-3-
"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.
"Common Security" means an undivided beneficial interest in
the assets of the Trust having a Liquidation Amount of $25 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit B.
"Corporate Trust Office" means the principal corporate trust
office of the Property Trustee located in New York, New York.
"Covered Person" means:(a) any officer, director, shareholder,
partner, member, representative, employee or agent of the Trust or the Trust's
Affiliates; and (b) any Holder of Trust Securities.
"Debenture Event of Default" means an "Event of Default" as
defined in the Subordinated Indenture.
"Debenture Issuer" means Minnesota Power & Light Company, a
Minnesota corporation, in its capacity as issuer of the Debentures.
"Debenture Redemption Date" means "Redemption Date" as defined
in the Subordinated Indenture with respect to the Debentures.
"Debenture Trustee" means The Bank of New York, as trustee
under the Subordinated Indenture.
"Debentures" means the $77,500,000 aggregate principal amount
of the Depositor's 8.05% Junior Subordinated Debentures, Series A, Due 2015,
issued pursuant to the Subordinated Indenture.
"Definitive Preferred Securities Certificates" means Preferred
Securities Certificates issued in certificated, fully registered form as
provided in Section 5.11.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of
the Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from
time to time.
"Delaware Trustee" means the banking corporation identified as
the "Delaware Trustee" in the preamble to this Trust Agreement solely in its
capacity as Delaware Trustee
-4-
of the Trust formed hereunder and not in its individual capacity, or its
successor in interest in such capacity, or any successor trustee appointed as
herein provided.
"Depositor" has the meaning specified in the preamble to this
Trust Agreement.
"Distribution Date" has the meaning specified in Section
4.01(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.01.
"Early Termination Event" has the meaning specified in
Section 9.02.
"Event of Default" means any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) the occurrence of a Debenture Event of Default; or
(ii) default by the Trust in the payment of any
Distribution when it becomes due and payable, and continuation
of such default for a period of 30 days; or
(iii) default by the Trust in the payment of any
Redemption Price, plus accumulated and unpaid distributions of
any Trust Security when it becomes due and payable; or
(iv) default in the performance, or breach, in any
material respect of any covenant or warranty of the Trustees
in this Trust Agreement (other than a covenant or warranty a
default in whose performance or breach is specifically dealt
with in clause (ii) or (iii), above) and continuation of such
default or breach for a period of 60 days after there has been
given, by registered or certified mail, to the Trust by the
Holders of at least 10% in Liquidation Amount of the
Outstanding Preferred Securities a written notice specifying
such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder;
or
(v) the occurrence of a Bankruptcy Event with respect
to the Trust.
"Exchange Act" has the meaning specified in Section 2.07(c).
-5-
"Expense Agreement" means the Agreement as to Expenses and
Liabilities between the Depositor and the Trust, substantially in the form
attached as Exhibit C, as amended from time to time.
"Expiration Date" shall have the meaning specified in Section
9.01.
"Guarantee" means the Guarantee Agreement executed and
delivered by the Depositor and The Bank of New York, a New York banking
corporation, as trustee, contemporaneously with the execution and delivery of
this Trust Agreement, for the benefit of the Holders of the Preferred
Securities, as amended from time to time.
"Indemnified Person" means any Trustee, any Affiliate of any
Trustee, or any officer, director, shareholder, member, partner, employee,
representative or agent of any Trustee, or any employee or agent of the Trust or
its Affiliates.
"Investment Company Event" means the occurrence of a change in
law or regulation or a change in interpretation or application of law or
regulation by any legislative body, court, governmental agency or regulatory
authority to the effect that the Trust is or will be considered an "investment
company" that is required to be registered under the Investment Company Act of
1940, as amended, which change in law becomes effective on or after the date of
original issuance of the Preferred Securities.
"Lien" means any lien, pledge, charge, encumbrance, mortgage,
deed of trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever.
"Like Amount" means (i) Trust Securities having a Liquidation
Amount equal to the principal amount of Debentures to be contemporaneously
redeemed in accordance with the Subordinated Indenture and the proceeds of which
will be used to pay the Redemption Price of such Trust Securities plus
accumulated and unpaid Distributions to the date of such payment and (ii)
Debentures having a principal amount equal to the Liquidation Amount of the
Trust Securities of the Holder to whom such Debentures are distributed.
"Liquidation Amount" means the stated amount of $25 per Trust
Security.
"Liquidation Date" means the date on which Debentures are to
be distributed to Holders of Trust Securities in connection with a termination
and liquidation of the Trust pursuant to Section 9.04(a).
"Liquidation Distribution" has the meaning specified in
Section 9.04(e).
"Offer" has the meaning specified in Section 2.07(c).
-6-
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman of the Board, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Depositor, and delivered to the appropriate Trustee.
One of the officers signing an Officers' Certificate given pursuant to Section
8.16 shall be the principal executive, financial or accounting officer of the
Depositor. Any Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Trust, the Property Trustee, the Delaware Trustee or the
Depositor, but not an employee of the Trust, the Property Trustee, the Delaware
Trustee or the Depositor, and who shall be reasonably acceptable to the Property
Trustee.
"Original Trust Agreement" has the meaning specified in the
recitals to this Trust Agreement.
"Outstanding," when used with respect to Preferred Securities,
means, as of the date of determination, all Preferred Securities theretofore
delivered under this Trust Agreement, except:
(i) Preferred Securities theretofore canceled by the
Administrative Trustees or delivered to the Administrative
Trustees for cancellation;
(ii) Preferred Securities for whose payment or
redemption money in the necessary amount has been theretofore
deposited with the Property Trustee or any Paying Agent for
the Holders of such Preferred Securities; provided that, if
such Preferred Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Trust
Agreement; and
-7-
(iii) Preferred Securities in exchange for or in lieu of
which other Preferred Securities have been delivered pursuant
to this Trust Agreement, including pursuant to Sections 5.04,
5.05 or 5.11;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Preferred Securities owned by the Depositor, any Trustee or any Affiliate of the
Depositor or any Trustee shall be disregarded and deemed not to be Outstanding,
except that (a) in determining whether any Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Preferred Securities which such Trustee knows to be so owned shall
be so disregarded and (b) the foregoing shall not apply at any time when all of
the outstanding Preferred Securities are owned by the Depositor, one or more of
the Trustees and/or any such Affiliate. Preferred Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Administrative Trustee the pledgee's
right so to act with respect to such Preferred Securities and that the pledgee
is not the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a
Preferred Securities Certificate as reflected in the records of the Securities
Depository or, if a Securities Depository Participant is not the beneficial
owner, then as reflected in the records of a Person maintaining an account with
such Securities Depository (directly or indirectly), in accordance with the
rules of such Securities Depository.
"Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 5.09 and shall initially be The Bank of New York.
"Payment Account" means a segregated non-interest-bearing
corporate trust account maintained by the Property Trustee at The Bank of New
York, or such other banking institution as the Depositor shall select in its
trust department for the benefit of the Securityholders in which all amounts
paid in respect of the Debentures will be held and from which the Paying Agent,
pursuant to Section 5.09, shall make payments to the Securityholders in
accordance with Sections 4.01 and 4.02.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
"Preferred Security" means a quarterly income preferred
security representing an undivided beneficial interest in the assets of the
Trust having a Liquidation Amount of $25 and having rights provided therefor in
this Trust Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
-8-
"Preferred Securities Certificate" means a certificate
evidencing ownership of Preferred Securities, substantially in the form attached
as Exhibit D.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Trust Agreement
solely in its capacity as Property Trustee of the Trust formed and continued
hereunder and not in its individual capacity, or its successor in interest in
such capacity, or any successor trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to
be redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Debenture Redemption Date shall be a Redemption
Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any date fixed for
redemption of any Trust Security, the Liquidation Amount of such Trust Security.
"Redemption Tax Opinion" has the meaning specified in Section
9.04(d).
"Registrar" shall mean the registrar for the Preferred
Securities appointed by the Trust and shall be initially The Bank of New York.
"Relevant Trustee" shall have the meaning specified in
Section 8.10.
"Responsible Officer," when used with respect to the Property
Trustee means an officer of the Property Trustee assigned by the Property
Trustee to administer its corporate trust matter.
"Securities Depository" shall be The Depository Trust Company.
"Securities Depository Participant" means an institution which
deposits securities with a Securities Depository for holding thereby.
"Securities Register" shall mean the Securities Register
described in Section 5.04.
"Securityholder" or "Holder" means a Person in whose name a
Trust Security or Securities is registered in the Securities Register; any such
Person shall be deemed to be a beneficial owner within the meaning of the
Delaware Business Trust Act.
"Special Event" means either a Tax Event or an Investment
Company Event.
-9-
"Subordinated Indenture" means the Indenture, dated as of
March 1, 1996, between the Depositor and the Debenture Trustee, as trustee, as
amended or supplemented from time to time.
"Tax Event" means the receipt by the Trust of an opinion of
counsel (which may be counsel to the Depositor or an affiliate but not an
employee thereof and which must be acceptable to the Property Trustee)
experienced in such matters to the effect that, as a result of any amendment to,
or change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein affecting taxation, or as a result of any
official administrative or judicial decision interpreting or applying such laws
or regulations, which amendment or change is effective or such pronouncement or
decision is announced on or after the date of original issuance of the Preferred
Securities under this Trust Agreement, there is more than an insubstantial risk
that (i) the Trust is, or will be within 90 days of the date thereof, subject to
United States federal income tax with respect to income received or accrued on
the Debentures, (ii) interest payable by the Depositor on the Debentures, is
not, or within 90 days of the date thereof, will not be, deductible, in whole or
in part, for United States federal income tax purposes, or (iii) the Trust is,
or will be within 90 days of the date thereof, subject to more than a de minimis
amount of other taxes, duties or other governmental charges.
"Transfer Agent" shall mean one or more transfer agents for
the Preferred Securities appointed by the Trust and shall be initially The Bank
of New York.
"Trust" means the Delaware business trust created by the
Original Trust Agreement and continued hereby and identified on the cover page
to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented in accordance
with the applicable provisions hereof, including all exhibits hereto, including,
for all purposes of this Amended and Restated Trust Agreement and any such
modification, amendment or supplement, the provisions of the Trust Indenture Act
that are deemed to be a part of and govern this Amended and Restated Trust
Agreement and any such modification, amendment or supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (i) the Debentures, (ii) any cash on
deposit in, or owing to, the Payment Account and (iii) all proceeds and rights
in respect of the foregoing and any other property and assets for the time being
held by the Property Trustee pursuant to the trusts of this Trust Agreement.
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"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
"Underwriting Agreement" means the Underwriting Agreement,
dated as of March 15, 1996, among the Trust, the Depositor and the underwriters
named therein.
ARTICLE II.
Establishment of the Trust
Section 2.01. Name. The Trust created hereby shall be known as
"MP&L Capital I", in which name the Trustees may conduct the business of the
Trust, make and execute contracts and other instruments on behalf of the Trust
and sue and be sued.
Section 2.02. Office of the Delaware Trustee; Principal Place
of Business. The office of the Delaware Trustee in the State of Delaware is
White Clay Center, Route 273, Newark, Delaware 19711, or at such other address
in Delaware as the Delaware Trustee may designate by written notice to the
Securityholders and the Depositor. The principal place of business of the Trust
is c/o Minnesota Power & Light Company, 30 West Superior Street, Duluth,
Minnesota 55802.
Section 2.03. Initial Contribution of Trust Property;
Organizational Expenses. The Property Trustee acknowledges receipt in trust from
the Depositor in connection with the Original Trust Agreement of the sum of $10,
which constituted the initial Trust Property. The Depositor shall pay
organizational expenses of the Trust as they arise or shall, upon request of any
Trustee, promptly reimburse such Trustee for any such expenses paid by such
Trustee. The Depositor shall make no claim upon the Trust Property for the
payment of such expenses.
Section 2.04. Issuance of the Preferred Securities. On March
15, 1996 the Depositor and an Administrative Trustee, on behalf of the Trust,
both executed and delivered the Underwriting Agreement. Contemporaneously with
the execution and delivery of this Trust Agreement, one of the Administrative
Trustees, on behalf of the Trust in accordance with Section 5.02, executed
manually and delivered a Preferred Securities Certificate, registered in the
name of the nominee of The Depositary Trust Company, having an aggregate
Liquidation Amount of $75,000,000.
Section 2.05. Subscription and Purchase of Debentures; Issuance
of the Common Securities. Contemporaneously with the execution and delivery of
this Trust Agreement, the Administrative Trustees, on behalf of the Trust, shall
subscribe to and
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purchase from the Depositor Debentures, registered in the name of the Property
Trustee and having an aggregate principal amount equal to $77,500,000, and, in
satisfaction of the purchase price for such Debentures, (x) one of the
Administrative Trustees, on behalf of the Trust, shall execute and deliver to
the Depositor Common Securities Certificates, registered in the name of the
Depositor, in an aggregate amount of 100,000 Common Securities having an
aggregate Liquidation Amount of $2,500,000, and (y) the Property Trustee, on
behalf of the Trust, shall deliver to the Depositor the sum of $75,000,000
representing the proceeds from the sale of the Preferred Securities pursuant to
the Underwriting Agreement.
Section 2.06. Declaration of Trust; Appointment of Additional
Administrative Trustees. (a) The exclusive purposes and functions of the Trust
are (i) to issue Trust Securities and invest the proceeds thereof in Debentures,
and (ii) to engage in those activities necessary, convenient or incidental
thereto. The Depositor hereby appoints the Trustees as trustees of the Trust, to
have all the rights, powers and duties to the extent set forth herein. The
Property Trustee hereby declares that it will hold the Trust Property in trust
upon and subject to the conditions set forth herein for the benefit of the
Securityholders. The Trustees shall have all rights, powers and duties set forth
herein and in accordance with applicable law with respect to accomplishing the
purposes of the Trust. Anything in this Trust Agreement to the contrary
notwithstanding the Delaware Trustee shall not be entitled to exercise any
powers, nor shall the Delaware Trustee have any of the duties and
responsibilities, of the Property Trustee or the Administrative Trustees set
forth herein. The Delaware Trustee shall be one of the Trustees of the Trust for
the sole and limited purpose of fulfilling the requirements of Section 3807 of
the Delaware Business Trust Act.
Section 2.07. Authorization to Enter into Certain Transactions.
(a) The Trustees shall conduct the affairs of the Trust in accordance with the
terms of this Trust Agreement. Subject to the limitations set forth in paragraph
(b) of this Section and Article VIII and in accordance with the following
provisions (A) and (B), the Trustees shall have the authority to enter into all
transactions and agreements determined by the Trustees to be appropriate in
exercising the authority, express or implied, otherwise granted to the Trustees
under this Trust Agreement, and to perform all acts in furtherance thereof,
including without limitation, the following:
(A) As among the Trustees, the Administrative Trustees shall have the
power, duty and authority to act on behalf of the Trust with respect to the
following matters:
(i) the issuance and sale of the Trust Securities;
(ii) without the consent of any Person, to cause the
Trust to enter into and to execute, deliver and perform on
behalf of the Trust, the Expense Agreement, and such
agreements as may be necessary or desirable in connection with
the consummation of the Underwriting Agreement (such execution
to be by the Administrative Trustees or any one of them);
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(iii) to qualify the Trust to do business in any
jurisdiction as may be necessary or desirable;
(iv) the collection of interest, principal and any
other payments made in respect of the Debentures in the
Payment Account;
(v) the registration of the Preferred Securities under
the Securities Act of 1933, as amended, and under state
securities or blue sky laws, and the qualification of this
Trust Agreement as a trust indenture under the Trust Indenture
Act;
(vi) the listing of the Preferred Securities upon such
securities exchange or exchanges as shall be determined by the
Depositor and the registration of the Preferred Securities
under the Exchange Act, and the preparation and filing of all
periodic and other reports and other documents pursuant to the
foregoing;
(vii) the appointments of a Paying Agent, a Transfer
Agent and a Registrar in accordance with this Trust Agreement
(subject to Section 5.09);
(viii) registering transfers of the Trust Securities
in accordance with this Trust Agreement; and
(ix) the taking of any action incidental to the
foregoing as the Administrative Trustees may from time to time
determine is necessary or advisable to protect and conserve
the Trust Property for the benefit of the Securityholders
(without consideration of the effect of any such action on any
particular Securityholder).
(B) As among the Trustees, the Property Trustee shall have the power,
duty and authority to act on behalf of the Trust with respect to the following
ministerial matters:
(i) the establishment of the Payment Account;
(ii) the receipt of the Debentures;
(iii) the deposit of interest, principal and any other
payments made in respect of the Debentures in the Payment
Account;
(iv) the distribution of amounts owed to the
Securityholders in respect of the Trust Securities in
accordance with the terms of this Trust Agreement;
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(v) the sending of notices of default and other
information regarding the Trust Securities and the Debentures
to the Securityholders in accordance with the terms of this
Trust Agreement;
(vi) the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
(vii) as provided in this Trust Agreement, the winding up
of the affairs of and liquidation of the Trust and the
execution of the certificate of cancellation to be prepared
and filed by the Administrative Trustees with the Secretary of
State of the State of Delaware; and
(viii) the taking of any ministerial action incidental to
the foregoing as the Property Trustee may from time to time
determine is necessary or advisable to protect and conserve
the Trust Property for the benefit of the Securityholders
(without consideration of the effect of any such action on any
particular Securityholder).
Subject to this Section 2.07(a)(B), the Property Trustee shall
have none of the duties, powers or authority of the Administrative Trustee set
forth in Section 2.07(a)(A) or the Depositor set forth in Section 2.07(c). The
Property Trustee shall have the power and authority to exercise all of the
rights, powers and privileges of a holder of Debentures under the Subordinated
Indenture and, if an Event of Default occurs and is continuing, the Property
Trustee may, for the benefit of Holders of the Trust Securities, in its
discretion proceed to protect and enforce its rights as holder of the Debentures
subject to the rights of the Holder pursuant to the terms of this Trust
Agreement.
(b) So long as this Trust Agreement remains in effect, the
Trust (or the Trustees acting on behalf of the Trust) shall not undertake any
business, activities or transaction except as expressly provided herein or
contemplated hereby. In particular, the Trustees shall not (i) acquire any
investments or engage in any activities not authorized by this Trust Agreement,
(ii) sell, assign, transfer, exchange, pledge, set-off or otherwise dispose of
any of the Trust Property or interests therein, including to Securityholders,
except as expressly provided herein, (iii) take any action that would cause the
Trust to fail or cease to qualify as a "grantor trust" for United States federal
income tax purposes and not as an association taxable as a corporation, (iv)
incur any indebtedness for borrowed money or (v) take or consent to any action
that would result in the placement of a Lien on any of the Trust Property. The
Trustees shall defend all claims and demands of all Persons at any time claiming
any Lien on any of the Trust Property adverse to the interest of the Trust or
the Securityholders in their capacity as Securityholders.
(c) In connection with the issue of the Preferred Securities,
the Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the
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Trust, the following (and any actions taken by the Depositor in furtherance of
the following prior to the date of this Trust Agreement are hereby ratified and
confirmed in all respects):
(i) to prepare for filing by the Trust with the
Commission and to execute a registration statement on Form S-3
in relation to the Preferred Securities, including any
amendments thereto;
(ii) to determine the States in which to take
appropriate action to qualify or register for sale all or part
of the Preferred Securities and to do any and all such acts,
other than actions which must be taken by or on behalf of the
Trust, and advise the Trustees of actions they must take on
behalf of the Trust, and prepare for execution and filing any
documents to be executed and filed by the Trust or on behalf
of the Trust, as the Depositor deems necessary or advisable in
order to comply with the applicable laws of any such States;
(iii) to prepare for filing by the Trust an application
to the New York Stock Exchange or any other national stock
exchange or the Nasdaq National Market for listing upon notice
of issuance of any Preferred Securities and to file or cause
the Administrative Trustees to file thereafter with such
exchange such notifications and documents as may be necessary
from time to time to maintain such listing;
(iv) to prepare for filing by the Trust with the
Commission and to execute a registration statement on Form 8-A
relating to the registration of the Preferred Securities under
Section 12(b) of the Securities Exchange Act of 1934, as
amended ("Exchange Act"), including any amendments thereto;
(v) to execute and deliver on behalf of the Trust the
Underwriting Agreement and such other agreements as may be
necessary or desirable in connection with the consummation
thereof;
(vi) to select the investment banker or bankers to act
as underwriters with respect to the offer and sale by the
Trust of Preferred Securities ("Offer") and negotiate the
terms of an Underwriting Agreement and pricing agreement
providing for the Offer; and
(vii) to take any other actions necessary or desirable
to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs of
the Trust and to operate the Trust so that the Trust will not be deemed to be an
"investment company" required to be registered under the Investment Company Act
of 1940, as amended, or classified other than as a "grantor trust" for United
States federal income tax purposes and not as an association
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taxable as a corporation and so that the Debentures will be treated as
indebtedness of the Depositor for United States federal income tax purposes. In
this connection, subject to the provisions of Section 10.03, the Depositor and
the Administrative Trustees are authorized to take any action, not inconsistent
with applicable law, the certificate of trust filed with the Secretary of State
of the State of Delaware with respect to the Trust (as amended or restated from
time to time, the "Certificate of Trust") or this Trust Agreement, that each of
the Depositor and the Administrative Trustees determines in its discretion to be
necessary or desirable for such purposes, as long as such action does not
materially adversely affect the interests of the Holders of the Preferred
Securities.
Section 2.08. Assets of Trust. The assets of the Trust shall
consist of the Trust Property.
Section 2.09. Title to Trust Property. Legal title to all
Trust Property shall be vested at all times in the Property Trustee (in its
capacity as such) and shall be held and administered by the Property Trustee for
the benefit of the Securityholders in accordance with this Trust Agreement.
ARTICLE III.
Payment Account
Section 3.01. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee
shall establish the Payment Account. The Property Trustees and the Paying Agent
appointed by the Administrative Trustees shall have exclusive control and sole
right of withdrawal with respect to the Payment Account for the purpose of
making deposits in and withdrawals from the Payment Account in accordance with
this Trust Agreement. All monies and other property deposited or held from time
to time in the Payment Account shall be held by the Property Trustee in the
Payment Account for the exclusive benefit of the Holders of Trust Securities and
for distribution as herein provided, including (and subject to) any priority of
payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal or interest on, and any other
payments or proceeds with respect to, the Debentures. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
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ARTICLE IV.
Distributions; Redemption
Section 4.01. Distributions.
(a) Distributions on the Trust Securities shall be cumulative,
and will accumulate whether or not there are funds of the Trust available for
the payment of Distributions. Distributions shall accrue from the Closing Date,
and, except in the event that the Depositor exercises its right to extend the
interest payment period for the Debentures pursuant to Section 311 of the
Subordinated Indenture, shall be payable quarterly in arrears on March 31, June
30, September 30 and December 31 of each year, commencing on March 31, 1996. If
any date on which Distributions are otherwise payable on the Trust Securities is
not a Business Day, then the payment of such Distribution shall be made on the
next succeeding day 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, payment of such distribution shall be made on
the immediately preceding Business Day, in each case, with the same force and
effect as if made on such date (each date on which distributions are payable in
accordance with this Section 4.01(a) a "Distribution Date").
(b) Distributions payable on the Trust Securities shall be
fixed at a rate of 8.05% per annum of the Liquidation Amount of the Trust
Securities. The amount of Distributions payable for any full quarterly period
shall be computed on the basis of twelve 30-day months and a 360-day year and
for any period shorter than a full month, on the basis of the actual number of
days elapsed. If the interest payment period for the Debentures is extended
pursuant to Section 311 of the Subordinated Indenture, then Distributions on the
Preferred Securities will be deferred for the period equal to the extension of
the interest payment period for the Debentures and the rate per annum at which
Distributions on the Trust Securities accumulate shall be increased by an amount
such that the aggregate amount of Distributions that accumulate on all Trust
Securities during any such extended interest payment period is equal to the
aggregate amount of interest (including, to the extent permitted by law,
interest payable on unpaid interest at the percentage rate per annum set forth
above, compounded quarterly) that accrues during any such extended interest
payment period on the Debentures. The amount of Distributions payable for any
period shall include the Additional Amounts, if any.
(c) Distributions on the Trust Securities shall be made and
shall be deemed payable on each Distribution Date only to the extent that the
Trust has funds available in the Payment Account for the payment of such
Distributions.
(d) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on the
Securities Register for the Trust
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Securities on the relevant record date, which shall be 15 days prior to the
relevant Distribution Date.
Section 4.02. Redemption.
(a) On each Debenture Redemption Date and at the maturity date
for the Debentures (as defined in the Subordinated Indenture), the Property
Trustee will be required to redeem a Like Amount of Trust Securities at the
Redemption Price plus accumulated and unpaid Distributions to the date of such
payment.
(b) Notice of redemption shall be given by the Property
Trustee by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date to each Holder of Trust Securities to
be redeemed, at such Holder's address appearing in the Security Register. All
notices of redemption or liquidation shall state:
(i) the Redemption Date;
(ii) the Redemption Price and the amount of accumulated
and unpaid Dividends to be paid on the Redemption Date;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities
are to be redeemed, the identification and the total
Liquidation Amount of the particular Trust Securities to be
redeemed; and
(v) that on the Redemption Date the Redemption Price
plus accumulated and unpaid Distributions to the date of such
payment will become due and payable upon each such Trust
Security to be redeemed and that interest thereon will cease
to accrue on and after said date.
(c) The Trust Securities redeemed on each Redemption Date
shall be redeemed at the Redemption Price plus accumulated and unpaid
Distributions to the date of such payment with the proceeds from the
contemporaneous redemption of Debentures. Redemptions of the Trust Securities
shall be made and the Redemption Price plus accumulated and unpaid Distributions
to the date of such payment shall be deemed payable on each Redemption Date only
to the extent that the Trust has funds immediately available in the Payment
Account for such payment.
(d) If the Property Trustee gives a notice of redemption in
respect of any Preferred Securities, then, by 12:00 noon, New York time, on the
Redemption Date, subject to Section 4.02(c), the Property Trustee shall
irrevocably deposit with the Paying Agent (or Securities Depository, in the
event the Preferred Securities are book-entry only) funds
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sufficient to pay the applicable Redemption Price plus accumulated and unpaid
Distributions to the date of such payment and will give the Paying Agent
irrevocable instructions and authority to pay the Redemption Price plus
accumulated and unpaid Distributions to the date of such payment to the Holders
thereof upon surrender of their Preferred Securities Certificates.
Notwithstanding the foregoing, Distributions payable on or prior to the
redemption date for any Trust Securities called for redemption shall be payable
to the Holders of such Trust Securities as they appear on the Securities
Register for the Trust Securities on the relevant record dates for the related
Distribution Dates. If notice of redemption shall have been given and funds
deposited as required, then on the Redemption Date, all rights of
Securityholders holding Trust Securities so called for redemption will cease,
except the right of such Securityholders to receive the Redemption Price plus
accumulated and unpaid Distributions to the date of such payment, but without
interest thereon, and such Trust Securities will cease to be outstanding. In the
event that any Redemption Date is not a Business Day, then payment of the
Redemption Price payable on such date plus accumulated and unpaid Distributions
to such date shall 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). In the
event that payment of the Redemption Price plus accumulated and unpaid
Distributions in respect of any Trust Securities called for redemption is
improperly withheld or refused and not paid either by the Trust or by the
Depositor pursuant to the Guarantee, Distributions on such Trust Securities will
continue to accrue, at the then applicable rate, from the Redemption Date
originally established by the Trust for such Trust Securities to the date such
Redemption Price plus accumulated and unpaid Distributions is actually paid, in
which case the actual payment date will be deemed the date fixed for redemption
for purposes of calculating the Redemption Price plus accumulated and unpaid
Distributions to such date.
(e) Payment of the Redemption Price on the Trust Securities
shall be made to the Holders thereof as they appear on the Securities Register
for the Trust Securities on the relevant record date, which shall be the
fifteenth day prior to the Redemption Date.
(f) If less than all the Outstanding Trust Securities are to
be redeemed on a Redemption Date, then the aggregate Liquidation Amount of Trust
Securities to be redeemed shall be allocated 3% to the Common Securities and 97%
to the Preferred Securities. The particular Preferred Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Property Trustee from the Outstanding Preferred Securities not previously called
for redemption, by such method as the Property Trustee shall deem fair and
appropriate and which may provide for the selection for a redemption of portions
(equal to $25 or integral multiples thereof) of the Liquidation Amount of
Preferred Securities of a denomination larger than $25. The Property Trustee
shall promptly notify the Transfer Agent and Registrar in writing of the
Preferred Securities selected for redemption and, in the case of any Preferred
Securities selected for partial redemption, the Liquidation Amount thereof to be
redeemed. For all purposes of this Trust Agreement, unless the context otherwise
requires, all provisions relating to the redemption of Preferred Securities
shall relate, in the case of any Preferred Securities redeemed or to be redeemed
only in part, to
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the portion of the Liquidation Amount of Preferred Securities which has been or
is to be redeemed.
Section 4.03. Subordination of Common Securities. (a) Payment
of Distributions (including Additional Amounts, if applicable) on, and the
Redemption Price plus accumulated and unpaid distributions of, the Trust
Securities, as applicable, shall be made pro rata based on the Liquidation
Amount of the Trust Securities; provided, however, that if on any Distribution
Date or Redemption Date a Debenture Event of Default shall have occurred and be
continuing, no payment of any Distribution (including Additional Amounts, if
applicable) on, or Redemption Price of, any Common Security, and no other
payment on account of the redemption, liquidation or other acquisition of Common
Securities, shall be made unless payment in full in cash of all accumulated and
unpaid Distributions (including Additional Amounts, if applicable) on all
Outstanding Preferred Securities for all distribution periods terminating on or
prior thereto, or in the case of payment of the Redemption Price plus
accumulated and unpaid Distributions the full amount of such Redemption Price
plus accumulated and unpaid Distributions on all Outstanding Preferred
Securities, shall have been made or provided for, and all funds immediately
available to the Property Trustee shall first be applied to the payment in full
in cash of all Distributions (including Additional Amounts, if applicable) on,
or Redemption Price plus accumulated and unpaid Distributions of, Preferred
Securities then due and payable.
(b) In the case of the occurrence of any Event of Default
resulting from a Debenture Event of Default, the Holder of Common Securities
will be deemed to have waived any such Event of Default under this Trust
Agreement until the effect of all such Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise eliminated. Until any
such Events of Default under this Trust Agreement with respect to the Preferred
Securities have been so cured, waived or otherwise eliminated, the Property
Trustee shall act solely on behalf of the Holders of the Preferred Securities
and not the Holder of the Common Securities, and only the Holders of the
Preferred Securities will have the right to direct the Property Trustee to act
on their behalf.
Section 4.04. Payment Procedures. Payments in respect of the
Preferred Securities shall be made by check mailed to the address of the Person
entitled thereto as such address shall appear on the Securities Register or, if
the Preferred Securities are held by a Securities Depository, such Distributions
shall be made to the Securities Depository, which shall credit the relevant
Persons' accounts at such Securities Depository on the applicable distribution
dates. Payments in respect of the Common Securities shall be made in such manner
as shall be mutually agreed between the Administrative Trustees and the Holder
of the Common Securities.
Section 4.05. Tax Returns and Reports. The Administrative
Trustees shall prepare (or cause to be prepared), at the Depositor's expense and
direction, and file all United States federal, state and local tax and
information returns and reports required to be filed by or in respect of the
Trust. In this regard, the Administrative Trustees shall (a)
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prepare and file (or cause to be prepared or filed) the Internal Revenue Service
Form 1041 (or any successor form) required to be filed in respect of the Trust
in each taxable year of the Trust and (b) prepare and furnish (or cause to be
prepared and furnished) to each Securityholder the related Internal Revenue
Service Form 1099, or any successor form or the information required to be
provided on such form. The Administrative Trustees shall provide the Depositor
and the Property Trustee with a copy of all such returns, reports and schedules
promptly after such filing or furnishing. The Trustees shall comply with United
States federal withholding and backup withholding tax laws and information
reporting requirements with respect to any payments to Securityholders under the
Trust Securities.
Section 4.06. Payments under Indenture. Any amount payable
hereunder to any Holder of Preferred Securities shall be reduced by the amount
of any corresponding payment such Holder has directly received pursuant to
Section 808 of the Subordinated Indenture. Notwithstanding the provisions
hereunder to the contrary, Securityholders acknowledge that any Holder of
Preferred Securities that receives payment under Section 808 of the Subordinated
Indenture may receive amounts greater than the amount such Holder may be
entitled to receive pursuant to the other provisions of this Trust Agreement.
ARTICLE V.
Trust Securities Certificates
Section 5.01. Initial Ownership. Upon the creation of the Trust
by the contribution by the Depositor pursuant to Section 2.03 and until the
issuance of the Trust Securities, and at any time during which no Trust
Securities are outstanding, the Depositor shall be the sole beneficial owner of
the Trust.
Section 5.02. The Trust Securities Certificates. The Trust
Securities Certificates shall be issued in denominations of $25 Liquidation
Amount and integral multiples thereof. Subject to Section 2.04 relating to the
original issuance of the Preferred Securities Certificate registered in the name
of the nominee of The Depository Trust Company, the Trust Securities
Certificates shall be executed on behalf of the Trust by manual or facsimile
signature of at least one Administrative Trustee and, if executed on behalf of
the Trust by facsimile signature, countersigned by a Transfer Agent or its
agent. Trust Securities Certificates bearing the manual signatures of
individuals who were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Trust and, if executed on behalf of the
Trust by facsimile signature, countersigned by a Transfer Agent or its agent,
shall be validly issued and entitled to the benefits of this Trust Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the delivery of such Trust Securities Certificates or did
not hold such offices at the date of delivery of such Trust Securities
Certificates. A transferee of a Trust Securities Certificate shall become a
Securityholder, and shall be entitled to the rights and
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subject to the obligations of a Securityholder hereunder, upon due registration
of such Trust Securities Certificate in such transferee's name pursuant to
Section 5.04 or 5.11.
Section 5.03. Execution and Delivery of Trust Securities
Certificates. On the Closing Date, the Administrative Trustees shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.04 and 2.05, to be executed on behalf of the Trust, and in the case
of Preferred Securities executed by facsimile signature, countersigned by a
Transfer Agent or its agent, and delivered to or upon the written order of the
Depositor signed by its chairman of the board, any of its vice presidents or its
Treasurer, without further corporate action by the Depositor, in authorized
denominations. The Depositor agrees to indemnify, defend and hold each Transfer
Agent harmless against any and all costs and liabilities incurred without
negligence arising out of or in connection with any such countersigning by it.
Section 5.04. Registration of Transfer and Exchange of
Preferred Securities Certificates. The Registrar shall keep or cause to be kept,
at its principal corporate office, a Securities Register in which, subject to
such reasonable regulations as it may prescribe, the Registrar shall provide for
the registration of Preferred Securities Certificates and the Common Securities
Certificates (subject to Section 5.10 in the case of the Common Securities
Certificates) and registration of transfers and exchanges of Preferred
Securities Certificates as herein provided.
Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to Section
5.08, the Administrative Trustees, or any one of them, shall execute on behalf
of the Trust by manual or facsimile signature and, if executed on behalf of the
Trust by facsimile signature, cause a Transfer Agent or its agent to countersign
and deliver, in the name of the designated transferee or transferees, one or
more new Preferred Securities Certificates in authorized denominations of a like
aggregate Liquidation Amount. At the option of a Holder, Preferred Securities
Certificates may be exchanged for other Preferred Securities Certificates in
authorized denominations of the same class and of a like aggregate Liquidation
Amount upon surrender of the Preferred Securities Certificates to be exchanged
at the office or agency maintained pursuant to Section 5.08.
Every Preferred Securities Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied by a
written instrument of transfer in form satisfactory to the Administrative
Trustees and a Transfer Agent duly executed by the Holder or such Holder's
attorney duly authorized in writing. Each Preferred Securities Certificate
surrendered for registration of transfer or exchange shall be canceled and
subsequently disposed of by the Administrative Trustees in accordance with
customary practice. The Trust shall not be required to (i) issue, register the
transfer of, or exchange any Preferred Securities during a period beginning at
the opening of business 15 calendar days before the day of mailing of a notice
of redemption of any Preferred Securities called for redemption and ending at
the close of business on the day of such mailing or (ii) register the transfer
of
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or exchange any Preferred Securities so selected for redemption, in whole or in
part, except the unredeemed portion of any such Preferred Securities being
redeemed in part.
No service charge shall be made for any registration of
transfer or exchange of Preferred Securities Certificates, but a Transfer Agent
may require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer or exchange of Preferred
Securities Certificates.
Section 5.05. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates. If (a) any mutilated Trust Securities Certificate shall
be surrendered to a Transfer Agent, or if a Transfer Agent shall receive
evidence to its satisfaction of the destruction, loss or theft of any Trust
Securities Certificate and (b) there shall be delivered to the Transfer Agent
and the Administrative Trustees such security or indemnity as may be required by
them to save each of them and the Depositor harmless, then in the absence of
notice that such Trust Securities Certificate shall have been acquired by a bona
fide purchaser, the Administrative Trustees, or any one of them, on behalf of
the Trust, shall execute by manual or facsimile signature and, if execution on
behalf of the Trust is by facsimile signature, countersigned by a Transfer
Agent; and the Administrative Trustees, or any one of them, shall make available
for delivery, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Trust Securities Certificate, a new Trust Securities Certificate of
like class, tenor and denomination. In connection with the issuance of any new
Trust Securities Certificate under this Section, the Administrative Trustees or
the Transfer Agent may require the payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection therewith. Any
duplicate Trust Securities Certificate issued pursuant to this Section shall
constitute conclusive evidence of an ownership interest in the Trust, as if
originally issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
Section 5.06. Persons Deemed Securityholders. Prior to due
presentation of a Trust Securities Certificate for registration of transfer, the
Trustees and the Registrar shall be entitled to treat the Person in whose name
any Trust Securities Certificate shall be registered in the Securities Register
as the owner of such Trust Securities Certificate for the purpose of receiving
Distributions and for all other purposes whatsoever, and neither the Trustees
nor the Registrar shall be bound by any notice to the contrary.
Section 5.07. Access to List of Securityholders' Names and
Addresses. The Administrative Trustees shall furnish or cause to be furnished
(x) to the Depositor, within 15 days after receipt by any Administrative Trustee
of a request therefor from the Depositor in writing and (y) to the Property
Trustee, promptly after receipt by any Administrative Trustee of a request
therefor from the Property Trustee in writing in order to enable the Property
Trustee to discharge its obligations under this Trust Agreement, a list, in such
form as the Depositor or the Property Trustee may reasonably require, of the
names and addresses of the Securityholders as of the most recent record date. If
Holders of Trust Securities Certificates evidencing ownership at such time and
for the previous six months not
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less than 25% of the outstanding aggregate Liquidation Amount apply in writing
to any Administrative Trustee, and such application states that the applicants
desire to communicate with other Securityholders with respect to their rights
under this Trust Agreement or under the Trust Securities Certificates and such
application is accompanied by a copy of the communication that such applicants
propose to transmit, then the Administrative Trustees shall, within five
Business Days after the receipt of such application, afford such applicants
access during normal business hours to the current list of Securityholders. Each
Holder, by receiving and holding a Trust Securities Certificate, shall be deemed
to have agreed not to hold either the Depositor or the Administrative Trustees
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
Section 5.08. Maintenance of Office or Agency. The Company
shall or shall cause the Transfer Agent to maintain in the Borough of Manhattan,
The City of New York, an office or offices or agency or agencies where Preferred
Securities Certificates may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company or the Transfer
Agent in respect of the Trust Securities Certificates may be served. The Company
initially designates The Bank of New York at its principal corporate trust
office for such purposes. The Company shall or shall cause the Transfer Agent to
give prompt written notice to the Depositor, the Property Trustee and to the
Securityholders of any change in any such office or agency.
Section 5.09. Appointment of Paying Agent. The Paying Agent
shall make distributions to Securityholders from the Payment Account and shall
report the amounts of such distributions to the Administrative Trustees and the
Property Trustee. Any Paying Agent shall have the revocable power to withdraw
funds from the Payment Account for the purpose of making the Distributions
referred to above. The Property Trustee shall be entitled to rely upon a
certificate of the Paying Agent stating in effect the amount of such funds so to
be withdrawn and that same are to be applied by the Paying Agent in accordance
with this Section 5.09. The Administrative Trustees or any one of them may
revoke such power and remove the Paying Agent if the Administrative Trustee or
any one of them determines in its sole discretion that the Paying Agent shall
have failed to perform its obligations under this Trust Agreement in any
material respect. The Paying Agent may choose any co-paying agent that is
acceptable to the Administrative Trustees and the Depositor. The Paying Agent
shall be permitted to resign upon 30 days' written notice to the Administrative
Trustees and the Depositor. In the event of the removal or resignation of the
Paying Agent, the Administrative Trustees shall appoint a successor that is
reasonably acceptable to the Property Trustee and the Depositor to act as Paying
Agent (which shall be a bank, trust company or an Affiliate of the Depositor).
The Administrative Trustees shall cause such successor Paying Agent or any
additional Paying Agent appointed by the Administrative Trustees to execute and
deliver to the Trustees an instrument in which such successor Paying Agent or
additional Paying Agent shall agree with the Trustees that as Paying Agent, such
successor Paying Agent or additional Paying Agent will hold all sums, if any,
held by it for payment to the Securityholders in trust for the benefit of the
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Securityholders entitled thereto until such sums shall be paid to such
Securityholders. The Paying Agent shall return all unclaimed funds to the
Property Trustee and upon resignation or removal of a Paying Agent such Paying
Agent shall also return all funds in its possession to the Property Trustee. The
provisions of Sections 8.01, 8.03 and 8.06 shall apply to the Paying Agent
appointed hereunder, and the Paying Agent shall be bound by the requirements
with respect to paying agents of securities issued pursuant to the Trust
Indenture Act. Any reference in this Trust Agreement to the Paying Agent shall
include any co-paying agent unless the context requires otherwise.
Section 5.10. Ownership of Common Securities by Depositor. On
the Closing Date and on each other date provided for in Section 2.05, the
Depositor shall acquire, and thereafter retain, beneficial and record ownership
of the Common Securities. Any attempted transfer of the Common Securities shall
be void. The Administrative Trustees shall cause each Common Securities
Certificate issued to the Depositor to contain a legend stating "THIS
CERTIFICATE IS NOT TRANSFERABLE". Common Securities Certificates representing
the Common Securities shall be issued to the Depositor in the form of a
typewritten or definitive Common Securities Certificate.
Section 5.11. Definitive Preferred Securities Certificates.
Upon initial issuance of the Preferred Securities the Definitive Preferred
Securities Certificates shall be typewritten, printed, lithographed or engraved
or may be produced in any other manner as is reasonably acceptable to the
Administrative Trustees, as evidenced by the execution thereof by the
Administrative Trustees, or any one of them. The Administrative Trustees, or any
one of them, shall execute on behalf of the Trust by manual or facsimile
signature, and, if executed by facsimile on behalf of the Trust, countersigned
by the Transfer Agent or its agent the Definitive Preferred Securities
Certificates initially in accordance with the instructions of the Depositor.
Neither the Transfer Agent nor any of the Administrative Trustees shall be
liable for any delay in delivery of such instructions and may conclusively rely
on, and shall be protected in relying on, such instructions.
Section 5.12. Book-Entry System. Some or all of the Preferred
Securities may be registered in the name of the Securities Depository or a
nominee therefor, and held in the custody of the Securities Depository. In such
event, a single certificate will be issued and delivered to the Securities
Depository for such Preferred Securities, in which case the Owners of such
Preferred Securities will not receive physical delivery of certificates for
Preferred Securities. Except as provided herein, all transfers of beneficial
ownership interests in such Preferred Securities will be made by book-entry
only, and no investor or other party purchasing, selling or otherwise
transferring beneficial ownership of the Preferred Securities will receive, hold
or deliver any certificate for Preferred Securities. The Depositor, the Trustees
and the Paying Agent will recognize the Securities Depository or its nominee as
the Holder of Preferred Securities for all purposes, including notices and
voting.
The Administrative Trustees, at the direction and expense of
the Depositor, may from time to time appoint a Securities Depository or a
successor thereto and enter into a
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letter of representations or other agreement with such Securities Depository to
establish procedures with respect to the Preferred Securities. Any Securities
Depository shall be a Clearing Agency.
The Depositor and the Trustees covenant and agree to meet the
requirements of a Securities Depository for the Preferred Securities with
respect to required notices and other provisions of the letter of
representations or agreement executed with respect to such Preferred Securities.
Whenever the beneficial ownership of any Preferred Securities
is determined through the books of a Securities Depository, the requirements in
this Trust Agreement of holding, delivering or transferring such Preferred
Securities shall be deemed modified with respect to such Preferred Securities to
meet the requirements of the Securities Depository with respect to actions of
the Trustees, the Depositor and the Paying Agent. Any provisions hereof
permitting or requiring delivery of such Preferred Securities shall, while such
Preferred Securities are in a book-entry system, be satisfied by the notation on
the books of the Securities Depository in accordance with applicable state law.
Section 5.13. Rights of Securityholders. The legal title to the
Trust Property is vested exclusively in the Property Trustee (in its capacity as
such) in accordance with Section 2.09, and the Securityholders shall not have
any right or title therein other than an undivided beneficial interest in the
assets of the Trust conferred by their Trust Securities and they shall have no
right to call for any partition or division of property, profits or rights of
the Trust except as described below. The Trust Securities shall be personal
property giving only the rights specifically set forth therein and in this Trust
Agreement. The Preferred Securities shall have no preemptive or similar rights
and when issued and delivered to Securityholders against payment of the purchase
price therefor will be fully paid and nonassessable interests in the Trust.
ARTICLE VI.
Acts of Securityholders; Meetings; Voting
Section 6.01. Limitations on Voting Rights.
(a) Except as provided in this Section 6.01, in Section 10.03
and as otherwise required by law, no Holder of Preferred Securities shall have
any right to vote or in any manner otherwise control the administration,
operation and management of the Trust or the obligations of the parties hereto,
nor shall anything herein set forth, or contained in the terms of the Trust
Securities Certificates, be construed so as to constitute the Securityholders
from time to time as partners or members of an association. If the Property
Trustee fails to enforce its rights under the Debentures or this Trust
Agreement, a Holder of Preferred Securities may institute a legal proceeding
directly against the Depositor to enforce the
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Property Trustee's rights under the Debentures or this Trust Agreement, to the
fullest extent permitted by law, without first instituting any legal proceeding
against the Property Trustee or any other person. Notwithstanding the foregoing,
a Holder of Preferred Securities may directly institute a proceeding for
enforcement of payment to such Holder directly of principal of or interest on
the Debentures having a principal amount equal to the aggregate liquidation
preference amount of the Preferred Securities of such Holder on or after the due
dates specified in the Debentures.
(b) So long as any Debentures are held by the Property
Trustee, the Trustees shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Debenture Trustee, or
executing any trust or power conferred on the Debenture Trustee with respect to
such Debentures, (ii) waive any past default which is waivable under Section 813
of the Subordinated Indenture, (iii) exercise any right to rescind or annul a
declaration that the principal of all the Debentures shall be due and payable or
(iv) consent to any amendment, modification or termination of the Subordinated
Indenture or the Debentures, where such consent shall be required, without, in
each case, obtaining the prior approval of the Holders of at least 66 2/3% of
the aggregate Liquidation Amount of the Outstanding Preferred Securities;
provided, however, that where a consent under the Subordinated Indenture would
require the consent of each holder of Debentures affected thereby, no such
consent shall be given by any Trustee without the prior written consent of each
holder of Preferred Securities. The Trustees shall not revoke any action
previously authorized or approved by a vote of the Preferred Securities, except
pursuant to a subsequent vote of the Preferred Securities. The Property Trustee
shall notify all Holders of the Preferred Securities of any notice of default
received from the Debenture Trustee with respect to the Debentures. In addition
to obtaining the foregoing approvals of the Holders of the Preferred Securities,
prior to taking any of the foregoing actions, the Property Trustee shall, at the
expense of the Depositor, obtain an Opinion of Counsel experienced in such
matters to the effect that the Trust will be classified as a "grantor trust" and
not as an association taxable as a corporation for United States federal income
tax purposes on account of such action.
(c) If any proposed amendment to the Trust Agreement provides
for, or the Trustees otherwise propose to effect, (i) any action that would
materially adversely affect the powers, preferences or special rights of the
Preferred Securities, whether by way of amendment to the Trust Agreement or
otherwise, or (ii) the dissolution, winding-up or termination of the Trust,
other than pursuant to the terms of this Trust Agreement, then the Holders of
Outstanding Preferred Securities as a class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of the Holders of at least 66 2/3 in Liquidation Amount
of the Outstanding Preferred Securities. No amendment to this Trust Agreement
may be made if, as a result of such amendment, the Trust would not be classified
as a "grantor trust" but as an association taxable as a corporation for United
States federal income tax purposes.
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Section 6.02. Notice of Meetings. Notice of all meetings of the
Holders of Preferred Securities, stating the time, place and purpose of the
meeting, shall be given by the Administrative Trustees pursuant to Section 10.08
to each Holder of a Preferred Security, at his registered address, at least 15
days and not more than 90 days before the meeting. At any such meeting, any
business properly before the meeting may be so considered whether or not stated
in the notice of the meeting. Any adjourned meeting may be held as adjourned
without further notice.
Section 6.03. Meetings of Holders of Preferred Securities. No
annual meeting of Securityholders is required to be held. The Administrative
Trustees, however, shall call a meeting of Securityholders to vote on any matter
upon the written request of the Holders of 25% of the then Outstanding Preferred
Securities (based upon their aggregate Liquidation Amount) and may, at any time
in their discretion, call a meeting of Holders of Preferred Securities to vote
on any matters as to which the Holders of Preferred Securities are entitled to
vote.
Holders of 50% of the then Outstanding Preferred Securities
(based upon their aggregate Liquidation Amount), present in person or by proxy,
shall constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by
the Holders of Preferred Securities present, in person or by proxy, holding more
than the lesser of (x) 66 2/3% of the then Outstanding Preferred Securities
(based upon their aggregate Liquidation Amount) held by the Holders of then
Outstanding Preferred Securities present, either in person or by proxy, at such
meeting and (y) 50% of the Outstanding Preferred Securities (based upon their
aggregate Liquidation Amount) shall constitute the action of the
Securityholders, unless this Trust Agreement requires a greater number of
affirmative votes.
Section 6.04. Voting Rights. Securityholders shall be entitled
to one vote for each $25 of Liquidation Amount represented by their Trust
Securities in respect of any matter as to which such Securityholders are
entitled to vote.
Section 6.05. Proxies, etc. At any meeting of Securityholders,
any Securityholder entitled to vote thereat may vote by proxy, provided that no
proxy shall be voted at any meeting unless it shall have been placed on file
with the Administrative Trustees, or with such other officer or agent of the
Trust as the Administrative Trustees may direct, for verification prior to the
time at which such vote shall be taken. Only Securityholders of record shall be
entitled to vote. When Trust Securities are held jointly by several Persons, any
one of them may vote at any meeting in person or by proxy in respect of such
Trust Securities, but if more than one of them shall be present at such meeting
in person or by proxy, and such joint owners or their proxies so present
disagree as to any vote to be cast, such vote shall not be received in respect
of such Trust Securities. A proxy purporting to be executed by or on behalf of a
Securityholder shall be deemed valid unless
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challenged at or prior to its exercise, or, if earlier, until eleven months
after it is sent and the burden of proving invalidity shall rest on the
challenger.
Section 6.06. Securityholder Action by Written Consent. Any
action which may be taken by Securityholders at a meeting may be taken without a
meeting if Securityholders holding more than a majority of all Outstanding Trust
Securities entitled to vote in respect of such action (or such larger proportion
thereof as shall be required by any express provision of this Trust Agreement)
shall consent to the action in writing (based upon their aggregate Liquidation
Amount).
Section 6.07. Record Date for Voting and Other Purposes. For
the purposes of determining the Securityholders who are entitled to notice of
and to vote at any meeting or by written consent, or to participate in any
Distribution on the Trust Securities in respect of which a record date is not
otherwise provided for in this Trust Agreement, or for the purpose of any other
action, the Administrative Trustees may from time to time fix a date, not more
than 90 days prior to the date of any meeting of Securityholders or the payment
of Distribution or other action, as the case may be, as a record date for the
determination of the identity of the Securityholders of record for such
purposes.
Section 6.08. Acts of Securityholders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Trust Agreement to be given, made or taken by Securityholders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Securityholders in person or by an agent duly
appointed in writing; and, except as otherwise expressly provided herein, such
action shall become effective when such instrument or instruments are delivered
to the Administrative Trustees. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Securityholders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Trust Agreement and (subject to Section
8.01) conclusive in favor of the Trustees, if made in the manner provided in
this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgements of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which any Trustee deems sufficient.
The ownership of Preferred Securities shall be proved by the
Securities Register.
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Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Securityholder of any Trust Security shall
bind every future Securityholder of the same Trust Security and the
Securityholder of every Trust Security issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustees or the Trust in reliance thereon,
whether or not notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled
hereunder to take any action hereunder with regard to any particular Trust
Security may do so with regard to all or any part of the Liquidation Amount of
such Trust Security or by one or more duly appointed agents each of which may do
so pursuant to such appointment with regard to all or any part of such
Liquidation Amount.
If any dispute shall arise between or among the
Securityholders and the Administrative Trustees with respect to the
authenticity, validity or binding nature of any request, demand, authorization,
direction, consent, waiver or other Act of such Securityholder or Trustee under
this Article VI, then the determination of such matter by the Property Trustee
shall be conclusive with respect to such matter.
Section 6.09. Inspection of Records. Subject to Section 5.07
concerning access to the list of Securityholders, upon reasonable notice to the
Administrative Trustees and the Property Trustee, the other records of the Trust
shall be open to inspection by Securityholders during normal business hours for
any purpose reasonably related to such Securityholder's interest as a
Securityholder.
ARTICLE VII.
Representations and Warranties of the Property
Trustee and the Delaware Trustee
Section 7.01. Property Trustee. The Property Trustee hereby
represents and warrants for the benefit of the Depositor and the Securityholders
that:
(a) the Property Trustee is a banking corporation or trust
company duly organized, validly existing and in good standing under the laws of
the State of New York;
(b) the Property Trustee has full corporate power, authority
and legal right to execute, deliver and perform its obligations under this Trust
Agreement and has taken all necessary action to authorize the execution,
delivery and performance by it of this Trust Agreement;
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(c) this Trust Agreement has been duly authorized, executed
and delivered by the Property Trustee and constitutes the valid and legally
binding agreement of the Property Trustee enforceable against it in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles;
(d) the execution, delivery and performance by the Property
Trustee of this Trust Agreement will not violate, conflict with or constitute a
breach of the Property Trustee's charter or by-laws; and
(e) neither the authorization, execution or delivery by the
Property Trustee of this Trust Agreement nor the consummation of any of the
transactions by the Property Trustee contemplated herein require the consent or
approval of, the giving of notice to, the registration with or the taking of any
other action with respect to any governmental authority or agency under any
existing Federal or New York law governing the banking or trust powers of the
Property Trustee.
Section 7.02. Delaware Trustee. The Delaware Trustee represents
and warrants for the benefit of the Depositor and the Securityholders that:
(a) the Delaware Trustee is a banking corporation or trust
company duly organized, validly existing and in good standing under the laws of
the State of Delaware;
(b) the Delaware Trustee has full corporate power, authority
and legal right to execute, deliver and perform its obligations under this Trust
Agreement and has taken all necessary action to authorize the execution,
delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed
and delivered by the Delaware Trustee and constitutes the valid and legally
binding agreement of the Delaware Trustee enforceable against it in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles;
(d) the execution, delivery and performance by the Delaware
Trustee of this Trust Agreement will not violate the Delaware Trustee's charter
or by-laws; and
(e) neither the authorization, execution or delivery by the
Delaware Trustee of this Trust Agreement nor the consummation of any of the
transactions by the Delaware Trustee contemplated herein require the consent or
approval of, the giving of notice to, the registration with or the taking of any
other action with respect to any governmental authority or agency under any
existing Federal or Delaware law governing the banking or trust powers of the
Delaware Trustee.
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ARTICLE VIII.
The Trustees
Section 8.01. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustees shall be
as provided by this Trust Agreement and, in the case of the Property Trustee,
the Trust Indenture Act, and no implied covenants or obligations shall be read
into this Trust Agreement against any of the Trustees. Notwithstanding the
foregoing, no provision of this Trust Agreement shall require any of the
Trustees to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it. Notwithstanding anything contained
in this Trust Agreement to the contrary, the duties and responsibilities of the
Property Trustee under this Trust Agreement shall be subject to the protections,
exculpations and limitations on liability afforded to the Property Trustee under
the provisions of the Trust Indenture Act and, to the extent applicable, Rule
3A-7 under the Investment Company Act of 1940, as amended, or any successor rule
thereunder. Whether or not therein expressly so provided, every provision of
this Trust Agreement relating to the conduct or affecting the liability of or
affording protection to the Trustees shall be subject to the provisions of this
Section.
(b) All payments made by the Property Trustee or a Paying
Agent in respect of the Trust Securities shall be made only from the income and
proceeds from the Trust Property and only to the extent that there shall be
sufficient income or proceeds from the Trust Property to enable the Property
Trustee or Paying Agent to make payments in accordance with the terms hereof.
Each Securityholder, by its acceptance of a Trust Security, agrees that it will
look solely to the income and proceeds from the Trust Property to the extent
available for distribution to it as herein provided and that the Trustees are
not personally liable to it for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust Security. This
Section 8.01(b) does not limit the liability of the Trustees expressly set forth
elsewhere in this Trust Agreement or, in the case of the Property Trustee, in
the Trust Indenture Act.
(c) All duties and responsibilities of the Property Trustee
contained in this Trust Agreement are subject to the following:
(i) the Property Trustee's sole duty with respect to
the custody, safe keeping and physical preservation of the
Trust Property shall be to deal with such property in a
similar manner as the Property Trustee deals with similar
property for its own account, subject to the protections and
limitations on liability afforded to the Property Trustee
under this Trust Agreement, the Trust
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Indenture Act and, to the extent applicable, Rule 3a-7 under
the Investment Company Act of 1940, as amended;
(ii) the Property Trustee shall have no duty or
liability for or with respect to the value, genuineness,
existence or sufficiency of the Trust Property or the payment
of any taxes or assessments levied thereon or in connection
therewith;
(iii) the Property Trustee shall not be liable for any
interest on any money received by it except as it may
otherwise agree with the Depositor. Money held by the Property
Trustee need not be segregated from other funds held by it
except in relation to the Payment Account established by the
Property Trustee pursuant to this Trust Agreement and except
to the extent otherwise required by law; and
(iv) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or
the Depositor with their respective duties under this Trust
Agreement, nor shall the Property Trustee be liable for the
default or misconduct of the Administrative Trustees or the
Depositor.
Section 8.02. Notice of Defaults. Within five Business Days
after the occurrence of any Event of Default, the Property Trustee shall
transmit, in the manner and to the extent provided in Section 10.08, notice of
any default known to the Property Trustee to the Securityholders and the
Depositor, unless such default shall have been cured or waived. For the purpose
of this Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default.
Section 8.03. Certain Rights of Property Trustee. Subject to
the provisions of Section 8.01 and except as provided by law:
(i) the Property Trustee may rely and shall be
protected in acting or refraining from acting in good faith
upon any resolution, Opinion of Counsel, certificate, written
representation of a Holder or transferee, certificate of
auditors or any other certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order,
appraisal, bond, debenture, note, other evidence of
indebtedness or other paper or document reasonably believed by
it to be genuine and to have been signed or presented by the
proper party or parties;
(ii) if (A) in performing its duties under this Trust
Agreement the Property Trustee is required to decide between
alternative courses of action or (B) in construing any of the
provisions in this Trust Agreement the Property Trustee finds
the same ambiguous or inconsistent with any other provisions
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contained herein or (C) the Property Trustee is unsure of the
application of any provision of this Trust Agreement, then,
except as to any matter as to which the Preferred
Securityholders are entitled to vote under the terms of this
Trust Agreement, the Property Trustee shall deliver a notice
to the Depositor requesting written instructions of the
Depositor as to the course of action to be taken. The Property
Trustee shall take such action, or refrain from taking such
action, as the Property Trustee shall be instructed in writing
to take, or to refrain from taking, by the Depositor;
provided, however, that if the Property Trustee does not
receive such instructions of the Depositor within ten Business
Days after it has delivered such notice, or such reasonably
shorter period of time set forth in such notice (which to the
extent practicable shall not be less than two Business Days),
it may, but shall be under no duty to, take or refrain from
taking such action not inconsistent with this Trust Agreement
as it shall deem advisable and in the best interests of the
Securityholders, in which event the Property Trustee shall
have no liability except for its own bad faith, negligence or
willful misconduct;
(iii) whenever in the administration of this Trust
Agreement the Property Trustee shall deem it desirable that a
matter be proved or established prior to taking, suffering or
omitting any action hereunder, the Property Trustee (unless
other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, request and rely upon an
Officers' Certificate which, upon receipt of such request,
shall be promptly delivered by the Depositor or the
Administrative Trustees;
(iv) the Property Trustee may consult with counsel of
its selection 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;
(v) the Property Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this
Trust Agreement at the request or direction of any of the
Securityholders pursuant to this Trust Agreement, unless such
Securityholders shall have offered to the Property Trustee
reasonable security or indemnity against the costs, expenses
(including reasonable attorneys' fees and expenses) and
liabilities which might be incurred by it in complying with
such request or direction;
(vi) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, approval,
bond, debenture, note or other evidence of indebtedness or
other paper or document reasonably believed by it to be
genuine, unless requested in writing to do so by one or more
Securityholders, but the Property Trustee, in
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its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the
Property Trustee shall determine to make such further inquiry
or investigation, it shall be entitled to examine the books,
records and premises of the Depositor personally or by agent
or attorney;
(vii) the Property Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either
directly or by or through its agents or attorneys, and the
Property Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed
with due care by it hereunder, provided that the Property
Trustee shall be responsible for its own negligence or
recklessness with respect to selection of any agent or
attorney appointed by it hereunder;
(viii) the Property Trustee shall not be liable for any
action taken, suffered, or omitted to be taken by it in good
faith and reasonably believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this
Trust Agreement;
(ix) the Property Trustee shall not be charged with
knowledge of any default or Event of Default with respect to
the Trust Securities unless either (1) a Responsible Officer
of the Property Trustee shall have actual knowledge of the
default or Event of Default or (2) written notice of such
default or Event of Default shall have been given to the
Property Trustee by the Depositor, the Administrative Trustees
or by any Holder of the Trust Securities;
(x) no provision of this Trust Agreement shall be
deemed to impose any duty or obligation on the Property
Trustee to perform any act or acts or exercise any right,
power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the
Property Trustee shall be unqualified or incompetent in
accordance with applicable law, to perform any such act or
acts or to exercise any such right, power, duty or obligation;
and no permissive or discretionary power or authority
available to the Property Trustee shall be construed to be a
duty;
(xi) no provision of this Trust Agreement shall require
the Property Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of
its rights or powers, if the Property Trustee shall have
reasonable grounds for believing that the repayment of such
funds or liability is not reasonably assured to it under the
terms of this Trust Agreement or adequate indemnity against
such risk or liability is not reasonably assured to it;
(xii) the Property Trustee shall have no duty to see to
any recording, filing or registration of any instrument
(including any financing or continuation
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statement or any tax or securities) (or any rerecording,
refiling or registration thereof);
(xiii) the Property Trustee shall have the right at any
time to seek instructions concerning the administration of
this Trust Agreement from any court of competent jurisdiction;
and
(xiv) whenever in the administration of this Trust
Agreement the Property Trustee shall deem it desirable to
receive instructions with respect to enforcing any remedy or
right or taking any other action hereunder the Property
Trustee (i) may request instructions from the Holders of the
Trust Securities, which instructions may only be given by the
Holders of the same proportion of Liquidation Amount of the
Trust Securities as would be entitled to direct the Property
Trustee under the terms of this Trust Agreement in respect of
such remedies, rights or actions, (ii) may refrain from
enforcing such remedy or right or taking such other action
until such instructions are received, and (iii) shall be
protected in acting in accordance with such instructions.
Section 8.04. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Trust Securities
Certificates shall be taken as the statements of the Trust, and the Trustees do
not assume any responsibility for their correctness. The Trustees make no
representations as to the value or condition of the property of the Trust or any
part thereof or as to the title of the Trust thereto or as to the security
afforded thereby or hereby, or as to the validity or genuineness of any
securities at any time pledged and deposited with any Trustees hereunder, nor as
to the validity or sufficiency of this Trust Agreement or the Trust Securities.
The Trustees shall not be accountable for the use or application by the Trust of
the proceeds of the Trust Securities in accordance with Section 2.05.
Section 8.05. May Hold Securities. Except as provided in the
definition of the term "Outstanding" in Article I, any Trustee or any other
agent of any Trustee or the Trust, in its individual or any other capacity, may
become the owner or pledgee of Trust Securities and may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
Section 8.06. Compensation; Fees; Indemnity.
The Depositor agrees
(1) to pay to the Trustees from time to time reasonable
compensation for all services rendered by the Trustees hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
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(2) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable expenses,
disbursements and advances reasonably incurred or made by the Trustees
in accordance with any provision of this Trust Agreement (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence (gross negligence, in the case
of any Administrative Trustee), bad faith or willful misconduct; and
(3) to indemnify each Trustee for, and to hold each Trustee
harmless against, any and all loss, damage, claims, liability or
expense incurred without negligence (gross negligence, in the case of
any Administrative Trustee), bad faith or willful misconduct on its
part, arising out of or in connection with the acceptance or
administration of this Trust Agreement, including the reasonable 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.
As security for the performance of the obligations of the
Depositor under this Section, each of the Trustees shall have a lien prior to
the Trust Securities upon all property and funds held or collected by such
Trustee as such, except funds held in trust for the payment of Distributions on
the Trust Securities.
The provisions of this Section shall survive the termination
of this Trust Agreement.
Section 8.07. Certain Trustees Required; Eligibility. (a)
There shall at all times be a Property Trustee hereunder with respect to the
Trust Securities. The Property Trustee shall be a Person that has a combined
capital and surplus of at least $50,000,000. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Person shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Property Trustee with respect to the
Trust Securities shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article VIII.
(b) There shall at all times be one or more Administrative
Trustees hereunder with respect to the Trust Securities. Each
Administrative Trustee shall be either a natural person who is at least
21 years of age or a legal entity that shall act through one or more
persons authorized to bind such entity.
(c) There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee shall either be
(i) a natural person who is at least 21 years of age and a resident of
the State of Delaware or (ii) a legal entity with its principal place
of business in the State of Delaware that otherwise meets the
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requirements of applicable Delaware law and that shall act through
one or more persons authorized to bind such entity.
Section 8.08. Conflicting Interests.
If the Property Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Property Trustee
shall either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and this
Trust Agreement. The Subordinated Indenture and the Guarantee Agreement shall be
deemed to be specifically described in this Trust Agreement for the purposes of
clause (i) of the first proviso contained in Section 310(b) of the Trust
Indenture Act.
Section 8.09. Co-Trustees and Separate Trustee.
Unless a Debenture Event of Default shall have occurred and be
continuing, at any time or times, for the purpose of meeting the legal
requirements of the Trust Indenture Act or of any jurisdiction in which any part
of the Trust Property may at the time be located, the Depositor and the Property
Trustee shall have power to appoint, and upon the written request of the
Property Trustee, the Depositor shall for such purpose join with the Property
Trustee in the execution, delivery, and performance of all instruments and
agreements necessary or proper to appoint, one or more Persons approved by the
Property Trustee either to act as co-trustee, jointly with the Property Trustee,
of all or any part of such Trust Property, or to act as separate trustee of any
such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons in the capacity
aforesaid, any property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section. If the Depositor does not join
in such appointment within 15 days after the receipt by it of a request so to
do, or in case an Event of Default under the Subordinated Indenture has occurred
and is continuing, the Property Trustee alone shall have power to make such
appointment.
Should any written instrument from the Depositor be required
by any co-trustee or separate trustee so appointed for more fully confirming to
such co-trustee or separate trustee such property, title, right, or power, any
and all such instruments shall, on request, be executed, acknowledged, and
delivered by the Depositor.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the following
terms, namely:
(1) The Trust Securities shall be executed and delivered and
all rights, powers, duties, and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, the Trustees designated for
such purpose hereunder, shall be exercised, solely by such Trustees.
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(2) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of any
property covered by such appointment shall be conferred or imposed upon
and exercised or performed by the Property Trustee or by the Property
Trustee and such co-trustee or separate trustee jointly, as shall be
provided in the instrument appointing such co-trustee or separate
trustee, except to the extent that under any law of any jurisdiction in
which any particular act is to be performed, the Property Trustee shall
be incompetent or unqualified to perform such act, in which event such
rights, powers, duties, and obligations shall be exercised and
performed by such co-trustee or separate trustee.
(3) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the Depositor,
may accept the resignation of or remove any co-trustee or separate
trustee appointed under this Section 8.09, and, in case an Event of
Default under the Subordinated Indenture has occurred and is
continuing, the Property Trustee shall have power to accept the
resignation of, or remove, any such co-trustee or separate trustee
without the concurrence of the Depositor. Upon the written request of
the Property Trustee, the Depositor shall join with the Property
Trustee in the execution, delivery, and performance of all instruments
and agreements necessary or proper to effectuate such resignation or
removal. A successor to any co-trustee or separate trustee so resigned
or removed may be appointed in the manner provided in this Section.
(4) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Trustee, or
any other such trustee hereunder.
(5) The Property Trustee shall not be liable by reason of any
act of a co-trustee or separate trustee.
(6) Any Act of Holders delivered to the Property Trustee shall
be deemed to have been delivered to each such co-trustee and separate
trustee.
Section 8.10. Resignation and Removal; Appointment of
Successor. No resignation or removal of any Trustee (as the case may be, the
"Relevant Trustee") and no appointment of a successor Relevant Trustee pursuant
to this Article shall become effective until the acceptance of appointment by
the successor Relevant Trustee in accordance with the applicable requirements of
Section 8.11.
The Relevant Trustee may resign at any time by giving written
notice thereof to the Securityholders. If the instrument of acceptance by a
successor Relevant Trustee required by Section 8.11 shall not have been
delivered to the Relevant Trustee within 30 days after the giving of such notice
of resignation, the resigning Relevant Trustee may petition any court of
competent jurisdiction for the appointment of a successor Relevant Trustee.
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Unless a Debenture Event of Default shall have occurred and be
continuing, the Relevant Trustee may be removed at any time by Act of the Common
Securityholder. If a Debenture Event of Default shall have occurred and be
continuing, the Relevant Trustee may be removed at such time by Act of the
Securityholders of a majority of the aggregate Liquidation Amount of the
Outstanding Preferred Securities, delivered to the Relevant Trustee (in its
individual capacity and on behalf of the Trust).
If the Relevant Trustee shall resign, be removed or become
incapable of continuing to act as Relevant Trustee at a time when no Debenture
Event of Default shall have occurred and be continuing, the Common
Securityholder, by Act of the Common Securityholder delivered to the retiring
Relevant Trustee, shall promptly appoint a successor Relevant Trustee or
Trustees, and the retiring Relevant Trustee shall comply with the applicable
requirements of Section 8.11. If the Relevant Trustee shall resign, be removed
or become incapable of continuing to act as the Relevant Trustee at a time when
a Debenture Event of Default shall have occurred and be continuing, the
Preferred Securityholders, by Act of the Preferred Securityholders of a majority
in Liquidation Amount of the Outstanding Preferred Securities delivered to the
retiring Relevant Trustee, shall promptly appoint a successor Relevant Trustee
or Trustees, and the Relevant Trustee shall comply with the applicable
requirements of Section 8.11. If no successor Relevant Trustee shall have been
so appointed by the Common Securityholders or the Preferred Securityholders and
accepted appointment in the manner required by Section 8.11, any Securityholder
who has been a Securityholder for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Relevant Trustee.
The retiring Relevant Trustee shall give notice of each
resignation and each removal of the Relevant Trustee and each appointment of a
successor Trustee to all Securityholders in the manner provided in Section 10.08
and shall give notice to the Depositor. Each notice shall include the name and
address of the successor Relevant Trustee and, in the case of the Property
Trustee, the address of its Corporate Trust Office.
Notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event any Administrative Trustee or a Delaware Trustee
who is a natural person dies or becomes incompetent or incapacitated, the
vacancy created by such death, incompetence or incapacity may be filled by (i)
the unanimous act of remaining Administrative Trustees if there are at least two
of them or (ii) otherwise by the Depositor (with the successor in each case
being an individual who satisfies the eligibility requirements for
Administrative Trustees or Delaware Trustee, as the case may be, set forth in
Section 8.07). Additionally, notwithstanding the foregoing or any other
provision of this Trust Agreement, in the event the Depositor reasonably
believes that any Administrative Trustee who is a natural person has become
incompetent or incapacitated, the Depositor, by notice to the remaining
Trustees, may terminate the status of such Person as an Administrative Trustee
(in which case the vacancy so created will be filled in accordance with the
preceding sentence).
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Section 8.11. Acceptance of Appointment by Successor. In case
of the appointment hereunder of a successor Relevant Trustee, the retiring
Relevant Trustee and each successor Trustee shall execute and deliver an
amendment hereto wherein each successor Relevant 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 Relevant
Trustee all the rights, powers, trusts and duties of the retiring Relevant
Trustee with respect to the Trust Securities and the Trust and (2) shall add to
or change any of the provisions of this Trust Agreement as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Relevant Trustee, it being understood that nothing herein or in such
amendment shall constitute such Relevant Trustees co-trustees of the same trust
and that each such Relevant Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Relevant Trustee and upon the execution and delivery of such
amendment the resignation or removal of the retiring Relevant Trustee shall
become effective to the extent provided therein and each such successor Relevant
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Relevant Trustee; but,
on request of the Trust or any successor Relevant Trustee such retiring Relevant
Trustee shall duly assign, transfer and deliver to such successor Trustee all
Trust Property, all proceeds thereof and money held by such retiring Relevant
Trustee hereunder with respect to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the
retiring Relevant Trustee shall execute any and all instruments for more fully
and certainly vesting in and confirming to such successor Relevant Trustee all
such rights, powers and trusts referred to in the first or second preceding
paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment
unless at the time of such acceptance such successor Relevant Trustee shall be
qualified and eligible under this Article VIII.
Section 8.12. Merger, Conversion, Consolidation or Succession
to Business. Any Person into which the Property Trustee or the Delaware Trustee
or any Administrative Trustee or any Trustee that is not a natural person may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Relevant
Trustee shall be a party, or any Person succeeding to all or substantially all
the corporate trust business of such Relevant Trustee, shall be the successor of
such Relevant Trustee hereunder, provided such Person shall be otherwise
qualified and eligible under this Article VIII, without the execution or filing
of any paper or any further act on the part of any of the parties hereto.
Section 8.13. Preferential Collection of Claims Against
Depositor or Trust. If and when the Property Trustee shall be or become a
creditor of the Depositor or the Trust (or any other obligor upon the Debentures
or the Trust Securities), the Property
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Trustee shall be subject to the provisions of the Trust Indenture Act regarding
the collection of claims against the Depositor or Trust (or any such other
obligor).
Section 8.14. Reports by Property Trustee. (a) the Property
Trustee shall transmit to Securityholders such reports concerning the Property
Trustee and its actions under this Trust Agreement as may be required pursuant
to the Trust Indenture Act at the times and in the manner provided pursuant
thereto. Such of those reports as are required to be transmitted by the Property
Trustee pursuant to Section 313(a) of the Trust Indenture Act shall be so
transmitted within 60 days after July 31 of each year, commencing July 31, 1996.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with each stock
exchange upon which the Trust Securities are listed, with the Commission and
with the Depositor. The Depositor will notify the Property Trustee when any
Trust Securities are listed on any stock exchange.
Section 8.15. Reports to the Property Trustee. The Depositor
and the Administrative Trustees on behalf of the Trust shall provide to the
Property Trustee such documents, reports and information as required by Section
314 (if any) and the compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times required by Section
314 of the Trust Indenture Act.
Section 8.16. Evidence of Compliance With Conditions
Precedent. Each of the Depositor and the Administrative Trustees on behalf of
the Trust shall provide to the Property Trustee such evidence of compliance with
any conditions precedent, if any, provided for in this Trust Agreement
(including any covenants compliance with which constitutes a condition
precedent) that relate to any of the matters set forth in Section 314(c) of the
Trust Indenture Act. Any certificate or opinion required to be given by an
officer pursuant to Section 314(c)(1) of the Trust Indenture Act may be given in
the form of an Officers' Certificate.
Section 8.17. Number of Trustees.
(a) The number of Trustees shall be five, provided that
Depositor, by written instrument may increase or decrease the number of
Administrative Trustees.
(b) If a Trustee ceases to hold office for any reason and the
number of Administrative Trustees is not reduced pursuant to Section 8.17(a), or
if the number of Trustees is increased pursuant to Section 8.17(a), a vacancy
shall occur. The vacancy shall be filled with a Trustee appointed in accordance
with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul the Trust. Whenever a vacancy in the number of Administrative Trustees
shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.10, the
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Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Agreement), shall have all the
powers granted to the Administrative Trustees and shall discharge all the duties
imposed upon the Administrative Trustees by this Trust Agreement.
Section 8.18. Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person over the
age of 21 his or her power for the purpose of executing any documents
contemplated in Section 2.07(a), including any registration statement or
amendment thereto filed with the Commission, or making any other governmental
filing; and
(b) the Administrative Trustees shall have power to delegate
from time to time to such of their number the doing of such things and the
execution of such instruments either in the name of the Trust or the names of
the Administrative Trustees or otherwise as the Administrative Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
Section 8.19. Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities relating thereto
to the Trust or to any other Covered Person, an Indemnified Person acting under
this Trust Agreement shall not be liable to the Trust or to any other Covered
Person for its good faith reliance on the provisions of this Trust Agreement.
The provisions of this Trust Agreement, to the extent that they restrict the
duties and liabilities of an Indemnified Person otherwise existing at law or in
equity (other than the duties imposed on the Property Trustee under the Trust
Indenture Act), are agreed by the parties hereto to replace such other duties
and liabilities of such Indemnified Person;
(b) Unless otherwise expressly provided herein and subject to
the provisions of the Trust Indenture Act:
(i) whenever a conflict of interest exists or arises
between an Indemnified Person and any Covered Person; or
(ii) whenever this Trust Agreement or any other
agreement contemplated herein or therein provides that an
Indemnified Person shall act in a manner that is, or provides
terms that are, fair and reasonable to the Trust or any Holder
of Trust Securities, the Indemnified Person shall resolve such
conflict of interest, take such action or provide such terms,
considering in each case the relative interest of each party
(including its own interest) to such conflict, agreement,
transaction or situation and the benefits and burdens relating
to
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such interests, any customary or accepted industry
practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the
Indemnified Person, the resolution, action or term so made,
taken or provided by the Indemnified Person shall not
constitute a breach of this Trust Agreement or any other
agreement contemplated herein or of any duty or obligation of
the Indemnified Person at law or in equity or otherwise; and
(c) Unless otherwise expressly provided herein and subject to
the provisions of the Trust Indenture Act, whenever in this Trust Agreement an
Indemnified Person is permitted or required to make a decision
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to
consider such interests and factors as it reasonably desires,
including its own interests, and shall have no duty or
obligation to give any consideration to any interest of or
factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under such express
standard and shall not be subject to any other or different
standard imposed by this Trust Agreement or by applicable law.
ARTICLE IX.
Termination and Liquidation
Section 9.01. Termination Upon Expiration Date. The Trust
shall automatically terminate on December 31, 2020 (the "Expiration Date") and
the Trust Property shall be distributed in accordance with Section 9.04.
Section 9.02. Early Termination. Upon the first to occur of
any of the following events (such first occurrence, an "Early Termination
Event"):
(i) the occurrence of a Bankruptcy Event in respect
of, or the dissolution or liquidation of, the Depositor;
(ii) the redemption of all of the Preferred Securities;
(iii) termination of the Trust in accordance with
Section 9.04(d);
(iv) an order for judicial termination of the Trust
having been entered by a court of competent jurisdiction;
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the Trust shall terminate and the Trustees shall take such action as is required
by Section 9.04.
Section 9.03. Termination. The respective obligations and
responsibilities of the Trust and the Trustees created hereby shall terminate
upon the latest to occur of the following: (i) the distribution by the Property
Trustee to Securityholders upon the liquidation of the Trust pursuant to Section
9.04, or upon the redemption of all of the Trust Securities pursuant to Section
4.02 or 9.04(d), of all amounts required to be distributed hereunder upon the
final payment of the Trust Securities; (ii) the payment of any expenses owed by
the Trust; and (iii) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders.
Section 9.04. Liquidation. (a) If an Early Termination Event
specified in clause (i) or (iv) of Section 9.02 occurs, after satisfaction of
creditors of the Trust, if any, as provided by applicable law, the Trust shall
be liquidated by the Property Trustee as expeditiously as the Property Trustee
determines to be appropriate by distributing to each Securityholder a Like
Amount of Debentures, subject to Section 9.04(e). Notice of liquidation shall be
given by the Administrative Trustees by first-class mail, postage prepaid,
mailed not later than 30 nor more than 60 days prior to the Liquidation Date to
each Holder of Trust Securities at such Holder's address appearing in the
Securities Register. All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the
Trust Securities will no longer be deemed to be outstanding
and any Trust Securities Certificates not surrendered for
exchange will be deemed to represent a Like Amount of
Debentures; and
(iii) provide such information with respect to the
mechanics by which Holders may exchange Trust Securities
Certificates for Debentures, or if Section 9.04(e) applies
receive a Liquidation Distribution, as the Administrative
Trustees or the Property Trustee shall deem appropriate.
(b) In order to effect any liquidation of the Trust hereunder,
and any resulting distribution of the Debentures to Securityholders, the
Property Trustee shall establish a record date for such distribution (which
shall be not more than 45 days prior to the Liquidation Date) and, either itself
acting as exchange agent or through the appointment of a separate exchange
agent, shall establish such procedures as it shall deem appropriate to effect
the distribution of Debentures in exchange for the Outstanding Trust Securities
Certificates.
(c) After any Liquidation Date, (i) the Trust Securities will
no longer be deemed to be Outstanding, (ii) certificates representing a Like
Amount of Debentures will be
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issued to Holders of Trust Securities Certificates, upon surrender of such Trust
Securities Certificates to the Administrative Trustees or their agent for
exchange, (iii) any Trust Securities Certificates not so surrendered for
exchange will be deemed to represent a Like Amount of Debentures, accruing
interest at the rate provided for in the Debentures from the last Distribution
Date on which a Distribution was made on such Trust Certificates until such
Trust Securities Certificates are so surrendered (and until such Trust
Securities Certificates are so surrendered, no payments or interest or principal
will be made to Holders of Trust Securities Certificates with respect to such
Debentures) and (iv) all rights of Securityholders holding Trust Securities will
cease, except the right of such Securityholders to receive Debentures upon
surrender of Trust Securities Certificates.
(d) If at any time, a Special Event shall occur and be
continuing, the Depositor has the right to (i) redeem the Debentures in whole
but not in part and therefore cause a mandatory redemption of all the Preferred
Securities at the Redemption Price within 90 days following the occurrence of
such Special Event, or (ii) cause the termination of the Trust. Further, if at
any time, the Trust is not or will not be taxed as a grantor trust under the
United States federal income tax law, but a Tax Event has not occurred, the
Depositor may elect termination of the Trust. In the event the Depositor elects
under the provisions of this section for the Trust to be terminated, the
Administrative Trustees shall, terminate the Trust and, after satisfaction of
creditors of the Trust, if any, as provided by applicable law, cause Debentures
held by the Property Trustee having a Like Amount of the Preferred Securities
and the Common Securities to be distributed to the Holders of the Preferred
Securities and the Common Securities on a pro rata basis in liquidation of such
Holders' interests in the Trust (in the case of such an election following the
occurrence of a Special Event) within 90 days following the occurrence of such
Special Event. The Common Securities will be redeemed on a pro rata basis with
the Preferred Securities, except that if a Debenture Event of Default has
occurred and is continuing, the Preferred Securities will have a priority over
the Common Securities with respect to payment of the Redemption Price and
accumulated and unpaid Distributions to the date of such payment.
(e) In the event that, notwithstanding the other provisions of
this Section 9.04, whether because of an order for termination entered by a
court of competent jurisdiction or otherwise, distribution of the Debentures in
the manner provided herein is determined by the Property Trustee not to be
practical, the Trust Property shall be liquidated, and the Trust shall be
dissolved, wound-up or terminated, by the Property Trustee in such manner as the
Property Trustee determines. In such event, on the date of the dissolution,
winding-up or other termination of the Trust, Securityholders will be entitled
to receive out of the assets of the Trust available for distribution to
Securityholders, after satisfaction of liabilities to creditors of the Trust, if
any, as provided by applicable law, an amount equal to the Liquidation Amount
per Trust Security plus accumulated and unpaid Distributions thereon to the date
of payment (such amount being the "Liquidation Distribution"). If, upon any such
dissolution, winding up or termination, the Liquidation Distribution can be paid
only in part because the Trust has insufficient assets available to pay in full
the aggregate Liquidation Distribution, then, subject to the next succeeding
sentence, the amounts payable by the Trust
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on the Trust Securities shall be paid on a pro rata basis (based upon
Liquidation Amounts). The Holder of Common Securities will be entitled to
receive Liquidation Distributions upon any such dissolution, winding-up or
termination pro rata (determined as aforesaid) with Holders of Preferred
Securities, except that, if a Debenture Event of Default has occurred and is
continuing or if a Debenture Event of Default has not occurred solely by reason
of a requirement that time lapse or notice be given, the Preferred Securities
shall have a priority over the Common Securities.
ARTICLE X.
Miscellaneous Provisions
Section 10.01. Guarantee by the Depositor and Assumption of
Obligations. Subject to the terms and conditions hereof, the Depositor
irrevocably and unconditionally guarantees to each Person to whom the Trust is
now or hereafter becomes indebted or liable (the "Beneficiaries"), and agrees to
assume liability for, the full payment, when and as due, of any and all
Obligations (as hereinafter defined) to such Beneficiaries. As used herein,
"Obligations" means any indebtedness, expenses or liabilities of the Trust,
other than obligations of the Trust to pay to Holders or other similar interests
in the Trust the amounts due such Holders pursuant to the terms of the Preferred
Securities or such other similar interests, as the case may be. This guarantee
and assumption is intended to be for the benefit, of, and to be enforceable by,
all such Beneficiaries, whether or not such Beneficiaries have received notice
hereof.
Section 10.02. Limitation of Rights of Securityholders. The
death or incapacity of any person having an interest, beneficial or otherwise,
in a Trust Security shall not operate to terminate this Trust Agreement, nor
entitle the legal representatives or heirs of such person or any Securityholder
for such person, to claim an accounting, take any action or bring any proceeding
in any court for a partition or winding up of the arrangements contemplated
hereby, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
Section 10.03. Amendment.
(a) This Trust Agreement may be amended from time to time by
the Trust (on approval of a majority of the Administrative Trustees and the
Depositor, without the consent of any Securityholders), (i) to cure any
ambiguity, correct or supplement any provision herein or therein which may be
inconsistent with any other provision herein or therein, or to make any other
provisions with respect to matters or questions arising under this Trust
Agreement, which shall not be inconsistent with the other provisions of this
Trust Agreement or (ii) to modify, eliminate or add to any provisions of this
Trust Agreement to such extent as shall be necessary to ensure that the Trust
will not be classified for United States federal income tax purposes other than
as a "grantor trust" and not as an association taxable as a
-47-
corporation at any time that any Trust Securities are outstanding or to ensure
the Trust's exemption from the status of an "investment company" under the
Investment Company Act of 1940, as amended; provided, however, that, except in
the case of clause (ii), such action shall not adversely affect in any material
respect the interests of any Securityholder and, in the case of clause (i), any
amendments of this Trust Agreement shall become effective when notice thereof is
given to the Securityholders.
(b) Except as provided in Sections 6.01(c) and 10.03(c), any
provision of this Trust Agreement may be amended by the Administrative Trustees
and the Depositor with (i) the consent of Holders of Trust Securities
representing not less than a majority (based upon Liquidation Amounts) of the
Outstanding Trust Securities and (ii) receipt by the Trustees of an Opinion of
Counsel to the effect that such amendment or the exercise of any power granted
to the Trustees in accordance with such amendment will not affect the Trust's
status as a grantor trust for federal income tax purposes or the Trust's
exemption from status of an "investment company" under the Investment Company
Act of 1940, as amended.
(c) In addition to and notwithstanding any other provision in
this Trust Agreement, without the consent of each affected Securityholder (such
consent being obtained in accordance with Section 6.03 or 6.06), this Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date or (ii) restrict the right of a Securityholder to institute suit
for the enforcement of any such payment on or after such date.
(d) Notwithstanding any other provisions of this Trust
Agreement, no Trustee shall enter into or consent to any amendment to this Trust
Agreement which would cause the Trust to fail or cease to qualify for the
exemption from status of an "investment company" under the Investment Company
Act of 1940, as amended, afforded by Rule 3a-5 thereunder.
(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the Depositor and the Trustees, this Trust
Agreement may not be amended in a manner which imposes any additional obligation
on the Depositor or any Trustee.
(f) In the event that any amendment to this Trust Agreement is
made, the Administrative Trustees shall promptly provide to the Depositor a copy
of such amendment.
(g) The Property Trustee is entitled to receive an Opinion of
Counsel as conclusive evidence that any amendment to this Trust Agreement
executed pursuant to this Section 10.03 is authorized or permitted by, and
conforms to, the terms of this Section 10.03, has been duly authorized by and
lawfully executed and delivered on behalf of the other requisite parties, and
that it is proper for the Property Trustee under the provisions of this Section
10.03 to join in the execution thereof.
-48-
Section 10.04. Separability. In case any provision in this
Trust Agreement or in the Trust Securities Certificates shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
Section 10.05. Governing Law. This Trust Agreement and the
rights and obligations of each of the Securityholders, the Trust and the
Trustees with respect to this Trust Agreement and the Trust Securities shall be
construed in accordance with and governed by the laws of the State of Delaware
(without regard to conflict of laws principles).
Section 10.06. Successors. This Trust Agreement shall be
binding upon and shall inure to the benefit of any successor to the Trust or the
Relevant Trustees or any of them, including any successor by operation of law.
Section 10.07. Headings. The Article and Section headings are
for convenience only and shall not affect the construction of this Trust
Agreement.
Section 10.08. Notice and Demand. Any notice, demand or other
communication which by any provision of this Trust Agreement is required or
permitted to be given or served to or upon any Securityholder or the Depositor
may be given or served in writing by deposit thereof, postage prepaid, in the
United States mail, hand delivery or facsimile transmission, in each case,
addressed, (i) in the case of a Preferred Securityholder, to such Preferred
Securityholder as such Securityholder's name and address may appear on the
Securities Register and (ii) in the case of the Common Securityholder or the
Depositor, to Minnesota Power & Light Company, 30 West Superior Street, Duluth,
Minnesota 55802, Attention: Treasurer, facsimile no. (218) 723-3912, with a copy
to the Secretary, facsimile no. (218) 723-3955. Such notice, demand or other
communication to or upon a Securityholder shall be deemed to have been
sufficiently given or made, for all purposes, upon hand delivery, mailing or
transmission.
Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be given or served
to or upon the Trust, the Property Trustee, the Delaware Trustee or the
Administrative Trustees shall be given in writing addressed (until another
address is published by the Trust) as follows: (i) with respect to the Property
Trustee or the Delaware Trustee, 101 Barclay Street, 21 West, New York, New York
10286 marked "Attention: Corporate Trust Administration" with a copy to: The
Bank of New York (Delaware), White Clay Center, Route 273, Newark, Delaware
19711 and (ii) with respect to the Trust or the Administrative Trustees, at the
address above for notice to the Depositor, marked "Attention: Administrative
Trustees for MP&L Capital I". Such notice, demand or other communication to or
upon the Trust or the Property Trustee shall be deemed to have been sufficiently
given or made only upon actual receipt of the writing by the Trust or the
Property Trustee.
-49-
Section 10.09. Agreement Not to Petition. Each of the Trustees
and the Depositor agrees for the benefit of the Securityholders that, until at
least one year and one day after the Trust has been terminated in accordance
with Article IX, it shall not file, or join in the filing of, a petition against
the Trust under any bankruptcy, reorganization, arrangement, insolvency,
liquidation or other similar law (including, without limitation, the United
States Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in
the commencement of any proceeding against the Trust under any Bankruptcy Law.
In the event the Depositor takes action in violation of this Section 10.09, the
Property Trustee agrees, for the benefit of Securityholders, that it shall file
an answer with the bankruptcy court or otherwise properly contest the filing of
such petition by the Depositor against the Trust or the commencement of such
action and raise the defense that the Depositor has agreed in writing not to
take such action and should be stopped and precluded therefrom and such other
defenses, if any, as counsel for the Property Trustee or the Trust may assert.
The provisions of this Section 10.09 shall survive the termination of this Trust
Agreement.
Section 10.10. Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions of the
Trust Indenture Act that are required or deemed to be part of this Trust
Agreement and shall, to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts
with another provision hereof which is required or deemed to be included in this
Trust Agreement by any of the provisions of the Trust Indenture Act, such
required or deemed provision shall control.
(d) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Trust Securities as equity
securities representing interests in the Trust.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY OR ON
BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST
SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND THE
AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT THOSE TERMS AND
PROVISIONS SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND
SUCH SECURITYHOLDER AND SUCH OTHERS.
-50-
IN WITNESS WHEREOF, the parties have caused this Trust Agreement to be duly
executed, all as of the day and year first above written.
MINNESOTA POWER & LIGHT COMPANY
By: D. G. Gartzke
--------------------------------
Title: Treasurer
THE BANK OF NEW YORK,
as Property Trustee
By: Helen M. Cotiaux
--------------------------------
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By: Donald J. Wrobel
--------------------------------
Title: Executive Vice President
Philip R. Halverson
--------------------------------
PHILIP R. HALVERSON
solely in his capacity as
Administrative Trustee
D. G. Gartzke
--------------------------------
DAVID G. GARTZKE
solely in his capacity as
Administrative Trustee
James Vizanko
--------------------------------
JAMES K. VIZANKO
solely in his capacity as
Administrative Trustee
-51-
EXHIBIT A
CERTIFICATE OF TRUST
OF
MP&L CAPITAL I
THIS CERTIFICATE OF TRUST of MP&L Capital I (the "Trust"),
dated as of , 1996, is being duly executed and filed by the undersigned, as
trustees, to create a business trust under the Delaware Business Trust Act (12
Del. C. Section 3801, et seq.).
1. Name. The name of the business trust being created hereby
is MP&L Capital I.
2. Delaware Trustee. The name and business address of the
trustee of the Trust with a principal place of business in the State of Delaware
are The Bank of New York (Delaware), White Clay Center, Route 273, Newark,
Delaware 19711.
3. Effective Date. This Certificate of Trust shall be
effective as of its filing.
IN WITNESS WHEREOF, the undersigned, being the only trustees
of the Trust, have executed this Certificate of Trust as of the date first above
written.
THE BANK OF NEW YORK (DELAWARE), PHILIP R. HALVERSON,
not in its individual capacity not in his individual capacity
but solely as Trustee but solely as Trustee
By: By:
---------------------- ----------------------
Name:
Title:
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Trustee
By:
----------------------
Name:
Title:
A-1
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Number of Common Securities
C-[ ]
Certificate Evidencing Common Securities
of
MP&L CAPITAL I
Common Securities
(Liquidation Amount $25 per Common Security)
MP&L Capital I, a statutory business trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that Minnesota
Power & Light Company (the "Holder") is the registered owner of _____ (_____)
common securities of the Trust representing undivided beneficial interests in
the assets of the Trust and designated the Common Securities (liquidation amount
$25 per Common Security) (the "Common Securities"). In accordance with Section
5.10 of the Trust Agreement (as defined below) the Common Securities are not
transferable and any attempted transfer hereof shall be void. The designations,
rights, privileges, restrictions, preferences and other terms and provisions of
the Common Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of _______ ___, 1995, as the same may be amended from time to
time (the "Trust Agreement"). The Trust will furnish a copy of the Trust
Agreement to the Holder without charge upon written request to the Trust at its
principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the
Trust Agreement and is entitled to the benefits thereunder.
B-1
IN WITNESS WHEREOF, an Administrative Trustee of the Trust has
executed this certificate for and on behalf of the Trust this ____ day of
_________, 199 .
MP&L CAPITAL I
By:
-----------------------------------------
not in his (her) individual capacity, but
solely as Administrative Trustee
B-2
EXHIBIT C
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of ________ ___, 1995, between Minnesota
Power & Light Company, a Minnesota corporation ("Minnesota Power"), and MP&L
Capital I, a Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue its Common Securities (the
"Common Securities") to and receive Debentures from Minnesota Power and to issue
its ___% Quarterly Income Preferred Securities (the "Preferred Securities") with
such powers, preferences and special rights and restrictions as are set forth in
the Amended and Restated Trust Agreement of the Trust dated as of ________ __,
1996 as the same may be amended from time to time (the "Trust Agreement");
WHEREAS, Minnesota Power is the issuer of the Debentures;
NOW, THEREFORE, in consideration of the acceptance by each
holder of the Preferred Securities, which acceptance Minnesota Power hereby
agrees shall benefit Minnesota Power and which acceptance Minnesota Power
acknowledges will be made in reliance upon the execution and delivery of this
Agreement, Minnesota Power, including in its capacity as holder of the Common
Securities, and the Trust hereby agree as follows:
ARTICLE I
Section 1.01. Assumption by Minnesota Power. Subject to the
terms and conditions hereof, Minnesota Power hereby irrevocably and
unconditionally assumes the full payment, when and as due, of any and all
Obligations (as hereinafter defined) to each person or entity to whom the Trust
is now or hereafter becomes indebted or liable (the "Beneficiaries"). As used
herein, "Obligations" means any indebtedness, expenses or liabilities of the
Trust, other than (i) obligations of the Trust to pay to holders of any
Preferred Securities or other similar interests in the Trust the amounts due
such holders pursuant to the terms of the Preferred Securities or such other
similar interests, as the case may be and (ii) obligations arising out of the
negligence, willful misconduct or bad faith of the Trustees of the Trust. This
Agreement is intended to be for the benefit of, and to be enforceable by, all
such Beneficiaries, whether or not such Beneficiaries have received notice
hereof.
Section 1.02. Term of Agreement. This Agreement shall
terminate and be of no further force and effect upon the date on which there are
no Beneficiaries remaining; provided, however, that this Agreement shall
continue to be effective or shall be reinstated, as the case may be, if at any
time any holder of Preferred Securities or any Beneficiary must restore payment
of any sums paid under the Preferred Securities, under any Obligation, under the
Guarantee Agreement dated the date hereof by Minnesota Power and The Bank of
C-1
New York, as guarantee trustee, or under this Agreement for any reason
whatsoever. This Agreement is continuing, irrevocable, unconditional and
absolute.
Section 1.03. Waiver of Notice. Minnesota Power hereby waives
notice of acceptance of this Agreement and of any Obligation to which it applies
or may apply, and Minnesota Power hereby waives presentment, demand for payment,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
Section 1.04. No Impairment. The obligations, covenants,
agreements and duties of Minnesota Power under this Agreement shall in no way be
affected or impaired by reason of the happening from time to time of any of the
following:
(a) the extension of time for the payment by the Trust of all
or any portion of the Obligations or for the performance of any other obligation
under, arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the
part of the Beneficiaries to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Beneficiaries with respect to the Obligations
or any action on the part of the Trust granting indulgence or extension of any
kind; or
(c) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or readjustment
of debt of, or other similar proceedings affecting, the Trust or any of the
assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, Minnesota Power with respect to the happening of any of the
foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce this
Agreement directly against Minnesota Power and Minnesota Power waives any right
or remedy to require that any action be brought against the Trust or any other
person or entity before proceeding against Minnesota Power.
ARTICLE II
Section 2.01. Binding Effect. All guarantees and agreements
contained in this Agreement shall bind the successors, assigns, receivers,
trustees and representatives of Minnesota Power and shall inure to the benefit
of the Beneficiaries.
Section 2.02. Amendment. So long as there remains any
Beneficiary or any Preferred Securities of any series are outstanding, this
Agreement shall not be modified or amended in any manner adverse to such
Beneficiary or to the holders of the Preferred Securities.
C-2
Section 2.03. Notices. Any notice, request or other
communication required or permitted to be given hereunder shall be given in
writing by delivering the same against receipt therefor by facsimile
transmission (confirmed by mail), telex or by registered or certified mail,
addressed as follows (and if so given, shall be deemed given when mailed or upon
receipt of an answer-back, if sent by telex), to wit:
MP&L Capital I
c/o Philip R. Halverson, Administrative Trustee
30 West Superior Street
Duluth, Minnesota 55802
Facsimile No.: (218) 723-3955
Minnesota Power & Light Company
30 West Superior Street
Duluth, Minnesota 55802
Facsimile No.: (218) 723-3912
Attention: Treasurer
Section 2.04 THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES).
THIS AGREEMENT is executed as of the day and year first above
written.
MINNESOTA POWER & LIGHT COMPANY
By:
---------------------------------
Name:
Title:
MP&L CAPITAL I
By:
---------------------------------
Philip R. Halverson
not in his individual capacity,
but solely as Administrative Trustee
C-3
[Clearing Agency Legend]
EXHIBIT D
Certificate Number Number of Preferred Securities
P- CUSIP NO.
Certificate Evidencing Preferred Securities
of
MP&L CAPITAL I
% Quarterly Income Preferred Securities
(Liquidation Amount $25 per Preferred Security)
MP&L Capital I, a statutory business trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that ____________
(the "Holder") is the registered owner of _____ (_____) preferred securities of
the Trust representing an undivided beneficial interest in the assets of the
Trust and designated the MP&L Capital I % Quarterly Income Preferred Securities
(liquidation amount $25 per Preferred Security) (the "Preferred Securities").
The Preferred Securities are transferable on the books and records of the Trust,
in person or by a duly authorized attorney, upon surrender of this certificate
duly endorsed and in proper form for transfer as provided in Section 5.04 or
5.11 of the Trust Agreement (as defined below). The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Preferred Securities are set forth in, and this certificate and the Preferred
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of , 1996, as the same may be amended from time to time (the
"Trust Agreement"). The holder of this certificate is entitled to the benefits
of the Guarantee Agreement of Minnesota Power & Light Company, a Minnesota
corporation, and The Bank of New York, as guarantee trustee, dated as of , 1996
(the "Guarantee") to the extent provided therein. The Trust will furnish a copy
of the Trust Agreement and the Guarantee to the holder of this certificate
without charge upon written request to the Trust at its principal place of
business or registered office.
Upon receipt of this certificate, the holder of this
certificate is bound by the Trust Agreement and is entitled to the benefits
thereunder.
D-1
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Trust has executed this certificate for and on behalf of the Trust.
Dated:
MP&L CAPITAL I
By:
-----------------------------------------
[ ]
not in his (her) individual capacity, but
solely as Administrative Trustee
D-2
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
of the Preferred Securities represented by this Preferred Securities Certificate
and irrevocably appoints
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
attorney to transfer such Preferred Securities Certificate on the books of the
Trust. The attorney may substitute another to act for him or her.
Date:
------------------------
Signature:
---------------------------
(Sign exactly as your name appears on the other side of this Preferred
Securities Certificate)
Signature:
---------------------------
(Sign exactly as your name appears on the other side of this Preferred
Securities Certificate)
D-3
Exhibit 4(b)
AMENDMENT NO. 1
TO AMENDED AND RESTATED TRUST AGREEMENT
DATED AS OF MARCH 1, 1996
Reference is made to an Amended and Restated Trust Agreement,
dated as of March 1, 1996, among Minnesota Power & Light Company, as Depositor,
The Bank of New York, as Property Trustee, The Bank of New York (Delaware), as
Delaware Trustee and Philip R. Halverson, David G. Gartzke and James K. Vizanko,
each in his individual capacity as an Administrative Trustee (the "Trust
Agreement"). Capitalized terms not otherwise defined herein shall be used with
the meanings ascribed to them in the Trust Agreement.
Pursuant to the provisions of Section 10.03(a) thereof, the
Trust Agreement is hereby amended, effective upon delivery of notice of this
Amendment No. 1 to the Securityholders, by the addition of the following to the
end of the last sentence of Section 4.01(d):
; provided that, at any time the sole Securityholder of the Preferred
Securities is the Securities Depository, the record date shall be one
Business Day prior to the relevant Distribution Date.
In witness whereof, the undersigned have executed this
Amendment No. 1 this 11th day of April, 1996.
MINNESOTA POWER & LIGHT COMPANY,
as Depositor
By: R. D. Edwards
-----------------------------------------
Robert D. Edwards, Executive Vice
President
Philip R. Halverson
--------------------------------------------
Philip R. Halverson, solely in his
capacity as Administrative Trustee
D. G. Gartzke
--------------------------------------------
David G. Gartzke, solely in his
capacity as Administrative Trustee
James Vizanko
--------------------------------------------
James K. Vizanko, solely in his
capacity as Administrative Trustee
Exhibit 4(c)
----------------------------------------------
MINNESOTA POWER & LIGHT COMPANY
TO
THE BANK OF NEW YORK
Trustee
---------
Indenture
(For Unsecured Subordinated Debt Securities
relating to Trust Securities)
Dated as of March 1, 1996
----------------------------------------------
i
TABLE OF CONTENTS
PARTIES.................................................................... 1
RECITAL OF THE COMPANY..................................................... 1
ARTICLE ONE................................................................ 1
Definitions and Other Provisions of General Application.................... 1
SECTION 101. Definitions......................................... 1
Act...................................................... 2
Additional Interest...................................... 2
Affiliate................................................ 2
Authenticating Agent..................................... 2
Authorized Officer....................................... 2
Board of Directors....................................... 2
Board Resolution......................................... 2
Business Day............................................. 2
Commission............................................... 3
Company.................................................. 3
Company Request or Company Order......................... 3
Corporate Trust Office................................... 3
corporation.............................................. 3
Defaulted Interest....................................... 3
Dollar or $.............................................. 3
Event of Default......................................... 3
Governmental Authority................................... 3
Government Obligations................................... 3
Guarantee................................................ 4
Holder................................................... 4
Indenture................................................ 4
Interest Payment Date.................................... 4
Maturity................................................. 4
Officer's Certificate.................................... 4
Opinion of Counsel....................................... 4
Outstanding.............................................. 4
Paying Agent............................................. 5
Person................................................... 5
Place of Payment......................................... 5
Predecessor Security..................................... 5
Preferred Securities..................................... 6
Redemption Date.......................................... 6
Redemption Price......................................... 6
Regular Record Date...................................... 6
Responsible Officer...................................... 6
Securities............................................... 6
Note: This table of contents shall not, for any purpose, be deemed to
be part of the Indenture.
ii
Security Register and Security Registrar................. 6
Senior Indebtedness...................................... 6
Special Record Date...................................... 6
Stated Maturity.......................................... 6
Trust.................................................... 7
Trust Agreement.......................................... 7
Trust Indenture Act...................................... 7
Trustee.................................................. 7
United States............................................ 7
SECTION 102. Compliance Certificates and Opinions................ 7
SECTION 103. Form of Documents Delivered to Trustee.............. 8
SECTION 104. Acts of Holders..................................... 9
SECTION 105. Notices, etc. to Trustee and Company................ 10
SECTION 106. Notice to Holders of Securities; Waiver............. 11
SECTION 107. Conflict with Trust Indenture Act................... 12
SECTION 108. Effect of Headings and Table of Contents............ 12
SECTION 109. Successors and Assigns.............................. 12
SECTION 110. Separability Clause................................. 12
SECTION 111. Benefits of Indenture............................... 12
SECTION 112. Governing Law....................................... 13
SECTION 113. Legal Holidays...................................... 13
ARTICLE TWO................................................................ 13
Security Forms............................................................. 13
SECTION 201. Forms Generally..................................... 13
SECTION 202. Form of Trustee's Certificate of Authentication..... 14
ARTICLE THREE.............................................................. 14
The Securities............................................................. 14
SECTION 301. Amount Unlimited; Issuable in Series................ 14
SECTION 302. Denominations....................................... 18
SECTION 303. Execution, Authentication, Delivery and Dating...... 18
SECTION 304. Temporary Securities................................ 19
SECTION 305. Registration, Registration of Transfer and Exchange. 20
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.... 21
SECTION 307. Payment of Interest; Interest Rights Preserved...... 22
SECTION 308. Persons Deemed Owners............................... 23
SECTION 309. Cancellation by Security Registrar.................. 23
SECTION 310. Computation of Interest............................. 24
SECTION 311. Extension of Interest Payment....................... 24
SECTION 312. Additional Interest................................. 24
ARTICLE FOUR............................................................... 25
Redemption of Securities................................................... 25
Note: This table of contents shall not, for any purpose, be deemed to
be part of the Indenture.
iii
SECTION 401. Applicability of Article............................ 25
SECTION 402. Election to Redeem; Notice to Trustee............... 25
SECTION 403. Selection of Securities to Be Redeemed.............. 25
SECTION 404. Notice of Redemption................................ 26
SECTION 405. Securities Payable on Redemption Date............... 27
SECTION 406. Securities Redeemed in Part......................... 27
ARTICLE FIVE............................................................... 28
Sinking Funds.............................................................. 28
SECTION 501. Applicability of Article............................ 28
SECTION 502. Satisfaction of Sinking Fund Payments with
Securities........................................ 28
SECTION 503. Redemption of Securities for Sinking Fund........... 28
ARTICLE SIX................................................................ 29
Covenants.................................................................. 29
SECTION 601. Payment of Principal, Premium and Interest.......... 29
SECTION 602. Maintenance of Office or Agency..................... 29
SECTION 603. Money for Securities Payments to Be Held in Trust... 30
SECTION 604. Corporate Existence................................. 31
SECTION 605. Maintenance of Properties........................... 31
SECTION 606. Annual Officer's Certificate as to Compliance....... 32
SECTION 607. Waiver of Certain Covenants......................... 32
SECTION 608. Restriction on Payment of Dividends................. 32
SECTION 609. Maintenance of Trust Existence...................... 33
SECTION 610. Rights of Holders of Preferred Securities........... 33
ARTICLE SEVEN.............................................................. 34
Satisfaction and Discharge................................................. 34
SECTION 701. Defeasance.......................................... 34
SECTION 702. Satisfaction and Discharge of Indenture............. 36
SECTION 703. Application of Trust Money.......................... 37
ARTICLE EIGHT.............................................................. 37
Events of Default; Remedies................................................ 37
SECTION 801. Events of Default................................... 37
SECTION 802. Acceleration of Maturity; Rescission and Annulment.. 39
SECTION 803. Collection of Indebtedness and Suits for
Enforcement by Trustee............................ 40
SECTION 804. Trustee May File Proofs of Claim.................... 41
SECTION 805. Trustee May Enforce Claims Without Possession
of Securities..................................... 41
SECTION 806. Application of Money Collected...................... 42
SECTION 807. Limitation on Suits................................. 42
SECTION 808. Unconditional Right of Holders to Receive Principal,
Premium and Interest....................................................... 43
Note: This table of contents shall not, for any purpose, be deemed to be
part of the Indenture.
iv
SECTION 809. Restoration of Rights and Remedies.................. 43
SECTION 810. Rights and Remedies Cumulative...................... 43
SECTION 811. Delay or Omission Not Waiver........................ 44
SECTION 812. Control by Holders of Securities.................... 44
SECTION 813. Waiver of Past Defaults............................. 44
SECTION 814. Undertaking for Costs............................... 45
SECTION 815. Waiver of Stay or Extension Laws.................... 45
ARTICLE NINE............................................................... 45
The Trustee................................................................ 45
SECTION 901. Certain Duties and Responsibilities................. 45
SECTION 902. Notice of Defaults.................................. 46
SECTION 903. Certain Rights of Trustee........................... 46
SECTION 904. Not Responsible for Recitals or Issuance
of Securities..................................... 47
SECTION 905. May Hold Securities................................. 48
SECTION 906. Money Held in Trust................................. 48
SECTION 907. Compensation and Reimbursement...................... 48
SECTION 908. Disqualification; Conflicting Interests............. 49
SECTION 909. Corporate Trustee Required; Eligibility............. 49
SECTION 910. Resignation and Removal; Appointment of Successor... 50
SECTION 911. Acceptance of Appointment by Successor.............. 52
SECTION 912. Merger, Conversion, Consolidation or Succession
to Business....................................... 53
SECTION 913. Preferential Collection of Claims Against Company... 53
SECTION 914. Co-trustees and Separate Trustees................... 54
SECTION 915. Appointment of Authenticating Agent................. 55
ARTICLE TEN................................................................ 57
Holders' Lists and Reports by Trustee and Company.......................... 57
SECTION 1001. Lists of Holders................................... 57
SECTION 1002. Reports by Trustee and Company..................... 57
ARTICLE ELEVEN............................................................. 57
Consolidation, Merger, Conveyance or Other Transfer ....................... 57
SECTION 1101. Company May Consolidate, etc., Only on
Certain Terms..................................... 57
SECTION 1102. Successor Corporation Substituted.................. 58
ARTICLE TWELVE............................................................. 58
Supplemental Indentures.................................................... 58
SECTION 1201. Supplemental Indentures Without Consent of Holders. 58
SECTION 1202. Supplemental Indentures With Consent of Holders.... 60
SECTION 1203. Execution of Supplemental Indentures............... 62
SECTION 1204. Effect of Supplemental Indentures.................. 62
SECTION 1205. Conformity With Trust Indenture Act................ 62
Note: This table of contents shall not, for any purpose, be deemed to be
part of the Indenture.
v
SECTION 1206. Reference in Securities to Supplemental Indentures. 62
SECTION 1207. Modification Without Supplemental Indenture........ 63
ARTICLE THIRTEEN........................................................... 63
Meetings of Holders; Action Without Meeting................................ 63
SECTION 1301. Purposes for Which Meetings May Be Called.......... 63
SECTION 1302. Call, Notice and Place of Meetings................. 63
SECTION 1303. Persons Entitled to Vote at Meetings............... 64
SECTION 1304. Quorum; Action..................................... 64
SECTION 1305. Attendance at Meetings; Determination of
Voting Rights; Conduct and Adjournment of
Meetings.......................................... 65
SECTION 1306. Counting Votes and Recording Action of Meetings.... 66
SECTION 1307. Action Without Meeting............................. 66
ARTICLE FOURTEEN........................................................... 67
Immunity of Incorporators, Stockholders, Officers and Directors............ 67
SECTION 1401. Liability Solely Corporate......................... 67
ARTICLE FIFTEEN............................................................ 67
Subordination of Securities................................................ 67
SECTION 1501. Securities Subordinate to Senior Indebtedness...... 67
SECTION 1502. Payment Over of Proceeds of Securities............. 68
SECTION 1503. Disputes with Holders of Certain Senior
Indebtedness...................................... 70
SECTION 1504. Subrogation........................................ 70
SECTION 1505. Obligation of the Company Unconditional............ 70
SECTION 1506. Priority of Senior Indebtedness Upon Maturity...... 71
SECTION 1507. Trustee as Holder of Senior Indebtedness........... 71
SECTION 1508. Notice to Trustee to Effectuate Subordination...... 71
SECTION 1509. Modification, Extension, etc. of Senior
Indebtedness...................................... 72
SECTION 1510. Trustee Has No Fiduciary Duty to Holders of
Senior Indebtedness............................... 72
SECTION 1511. Paying Agents Other Than the Trustee............... 72
SECTION 1512. Rights of Holders of Senior Indebtedness
Not Impaired...................................... 72
SECTION 1513. Effect of Subordination Provisions; Termination.... 73
Testimonium................................................................ 74
Signatures and Seals....................................................... 74
Acknowledgements........................................................... 76
Note: This table of contents shall not, for any purpose, be deemed to be
part of the Indenture.
MINNESOTA POWER & LIGHT COMPANY
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of March 1, 1996
Trust Indenture Act Section Indenture Section
Section 310
(a)(1)..................................................909
(a)(2)..................................................909
(a)(3)..................................................914
(a)(4)................................................Not Applicable
(b).....................................................908
910
Section 311
(a).....................................................913
(b).....................................................913
(c).....................................................913
Section 312
(a)....................................................1001
(b)....................................................1001
(c)....................................................1001
Section 313
(a)....................................................1002
(b)....................................................1002
(c)....................................................1002
Section 314
(a)....................................................1002
(a)(4)..................................................606
(b)...................................................Not Applicable
(c)(1)..................................................102
(c)(2)..................................................102
(c)(3)................................................Not Applicable
(d)...................................................Not Applicable
(e).....................................................102
Section 315
(a).....................................................901
903
(b).....................................................902
(c).....................................................901
(d).....................................................901
(e).....................................................814
Section 316
(a).....................................................812
813
(a)(1)(A)...............................................802
812
(a)(1)(B)...............................................813
(a)(2)................................................Not Applicable
(b).....................................................808
Section 317
(a)(1)..................................................803
(a)(2)..................................................804
(b).....................................................603
Section 318
(a).....................................................107
INDENTURE, dated as of March 1, 1996, between MINNESOTA POWER
& LIGHT COMPANY, a corporation duly organized and existing under the laws of the
State of Minnesota (herein called the "Company"), having its principal office at
30 West Superior Street, Duluth, Minnesota 55802, and THE BANK OF NEW YORK, a
corporation of the State of New York, having its principal corporate trust
office at 101 Barclay Street, New York, New York 10286, as Trustee (herein
called the "Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of indebtedness (herein called
the "Securities"), in an unlimited aggregate principal amount to be issued in
one or more series as contemplated herein; and all acts necessary to make this
Indenture a valid agreement of the Company have been performed.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires, capitalized terms
used herein shall have the meanings assigned to them in Article One of this
Indenture.
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 any
series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(b) all terms used herein without definition which are defined in
the Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with respect
to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United States at
the date of such
-2-
computation or, at the election of the Company from time to time, at the
date of the execution and delivery of this Indenture; provided,
however, that in determining generally accepted accounting principles
applicable to the Company, the Company shall, to the extent required,
conform to any order, rule or regulation of any administrative agency,
regulatory authority or other governmental body having
jurisdiction over the Company; and
(d) 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 Nine, are defined in
that Article.
"Act", when used with respect to any Holder of a Security, has
the meaning specified in Section 104.
"Additional Interest" has the meaning specified in Section 312.
"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 through one or
more intermediaries, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Authenticating Agent" means any Person (other than the Company
or an Affiliate of the Company) authorized by the Trustee pursuant to Section
915 to act on behalf of the Trustee to authenticate one or more series of
Securities.
"Authorized Officer" means the Chairman of the Board, the
President, any Vice President, the Treasurer, any Assistant Treasurer, or any
other officer or agent of the Company duly authorized by the Board of Directors
to act in respect of matters relating to this Indenture.
"Board of Directors" means either the board of directors of the
Company or any committee thereof duly authorized to act in respect of matters
relating to this Indenture.
"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.
"Business Day", when used with respect to a Place of Payment or
any other particular location specified in the Securities or this Indenture,
means any day, other than a Saturday or Sunday, which is not a day on which
banking institutions or trust companies in such Place of Payment or other
location are generally authorized or required by law, regulation or
-3-
executive order to remain closed, except as may be otherwise specified as
contemplated by Section 301.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the date of execution and delivery of
this Indenture such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body, if any, performing
such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by an Authorized Officer and delivered
to the Trustee.
"Corporate Trust Office" means the office of the Trustee at which
at any particular time its corporate trust business shall be principally
administered, which office at the date of execution and delivery of this
Indenture is located at 101 Barclay Street, New York, New York 10286.
"corporation" means a corporation, association, company, joint
stock company or business trust.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in such
coin or currency of the United States as at the time shall be legal tender for
the payment of public and private debts.
"Event of Default" has the meaning specified in Section 801.
"Governmental Authority" means the government of the United
States or of any State or Territory thereof or of the District of Columbia or of
any county, municipality or other political subdivision of any of the foregoing,
or any department, agency, authority or other instrumentality of any of the
foregoing.
"Government Obligations" means:
(a) direct obligations of, or obligations the principal
of and interest on which are unconditionally guaranteed by, the
United States and entitled to the benefit of the full faith and
credit thereof; and
(b) certificates, depositary receipts or other
instruments which evidence a direct ownership interest in
obligations described in clause (a) above or in any specific
interest or principal payments due in respect thereof; provided,
however, that the
-4-
custodian of such obligations or specific interest or principal
payments shall be a bank or trust company (which may include the
Trustee or any Paying Agent) subject to Federal or state
supervision or examination with a combined capital and surplus of
at least $50,000,000; and provided, further, that except as may
be otherwise required by law, such custodian shall be obligated
to pay to the holders of such certificates, depositary receipts
or other instruments the full amount received by such custodian
in respect of such obligations or specific payments and shall not
be permitted to make any deduction therefrom.
"Guarantee" means the guarantee agreement delivered from the
Company to a Trust, for the benefit of the holders of Preferred Securities
issued by such Trust.
"Holder" means a Person in whose name a Security is registered in
the Security Register.
"Indenture" means this instrument as originally executed and
delivered and 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 a particular series of
Securities established as contemplated by Section 301.
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"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 provided in such Security or in this Indenture,
whether at the Stated Maturity, by declaration of acceleration, upon call for
redemption or otherwise.
"Officer's Certificate" means a certificate signed by an
Authorized Officer and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Company, or other counsel acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities deemed to have been paid in accordance
with Section 701; and
(c) Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant
-5-
to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Trustee proof
satisfactory to it and the Company that such Securities
are held by a bona fide purchaser or purchasers in whose
hands such Securities are valid obligations of the Company;
provided, however, that in determining whether or not the Holders of the
requisite principal amount of the Securities Outstanding under this Indenture,
or the Outstanding Securities of any series, have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether or not
a quorum is present at a meeting of Holders of Securities, Securities owned by
the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor (unless the Company, such Affiliate or such
obligor owns all Securities Outstanding under this Indenture, or all Outstanding
Securities of each such series, as the case may be, determined without regard to
this provision) 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 or
upon any such determination as to the presence of a quorum, only Securities
which the Trustee knows to be so owned shall be so disregarded; provided,
however, that Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee'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; and provided, further, that,
in the case of any Security the principal of which is payable from time to time
without presentment or surrender, the principal amount of such Security that
shall be deemed to be Outstanding at any time for all purposes of this Indenture
shall be the original principal amount thereof less the aggregate amount of
principal thereof theretofore paid.
"Paying Agent" means any Person, including the Company,
authorized by the Company to pay the principal of, and premium, if any, or
interest, if any, on any Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, trust or unincorporated organization or any Governmental Authority.
"Place of Payment", when used with respect to the Securities of
any series, means the place or places, specified as contemplated by Section 301,
at which, subject to Section 602, principal of and premium, if any, and
interest, if any, on the Securities of such series are payable.
"Predecessor Security" 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 the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed (to the
extent lawful) to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
-6-
"Preferred Securities" means any preferred trust interests issued
by a Trust or similar securities issued by permitted successors to such Trust in
accordance with the Trust Agreement pertaining to such Trust.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"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 301.
"Responsible Officer", when used with respect to the Trustee,
means any officer of the Trustee assigned by the Trustee to administer its
corporate trust matters.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means all obligations (other than
non-recourse obligations and the indebtedness issued under this Indenture) of,
or guaranteed or assumed by, the Company for borrowed money, including both
senior and subordinated indebtedness for borrowed money (other than the
Securities), or for the payment of money relating to any lease which is
capitalized on the consolidated balance sheet of the Company and its
subsidiaries in accordance with generally accepted accounting principles as in
effect from time to time, or evidenced by bonds, debentures, notes or other
similar instruments, and in each case, amendments, renewals, extensions,
modifications and refundings of any such indebtedness or obligations, whether
existing as of the date of this Indenture or subsequently incurred by the
Company unless, in the case of any particular indebtedness, renewal, extension
or refunding, the instrument creating or evidencing the same or the assumption
or guarantee of the same expressly provides that such indebtedness, renewal,
extension or refunding is not superior in right of payment to or is pari passu
with the Securities; provided that the Company's obligations under the Guarantee
shall not be deemed to be Senior Indebtedness.
"Special Record Date" for the payment of any Defaulted Interest
on the Securities of any series means a date fixed by the Trustee pursuant to
Section 307.
"Stated Maturity", when used with respect to any obligation or
any installment of principal thereof or interest thereon, means the date on
which the principal of such obligation or such installment of principal or
interest is stated to be due and payable (without regard to any provisions for
redemption, prepayment, acceleration, purchase or extension).
-7-
"Trust" means MP&L Capital I, a statutory business trust created
under the laws of the State of Delaware, or any other Trust designated pursuant
to Section 301 hereof or any permitted successor under the Trust Agreement
pertaining to such Trust.
"Trust Agreement" means the Amended and Restated Trust Agreement,
dated as of , 1996, relating to MP&L Capital I or an Amended and Restated Trust
Agreement relating to a Trust designated pursuant to Section 301 hereof, in each
case, among the Company, as Depositor, the trustees named therein and several
holders referred to therein as they may be amended from time to
time.
"Trust Indenture Act" means, as of any time, the Trust Indenture
Act of 1939, or any successor statute, as in effect at such time.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
with respect to one or more series of Securities 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.
"United States" means the United States of America, its
Territories, its possessions and other areas subject to its political
jurisdiction.
SECTION 102. Compliance Certificates and Opinions
Except as otherwise expressly provided in this Indenture, upon
any application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall, if requested by the
Trustee, 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 (including any covenants compliance with which constitutes a
condition precedent) 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 Person 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;
-8-
(c) a statement that, in the opinion of each such Person, such
Person has made such examination or investigation as is necessary to
enable such Person to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
Person, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an 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 of the Company 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 or representations
with respect to the matters upon which such Officer's Certificate or opinion are
based are erroneous. Any such 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.
Whenever, subsequent to the receipt by the Trustee of any Board
Resolution, Officer's Certificate, Opinion of Counsel or other document or
instrument, a clerical, typographical or other inadvertent or unintentional
error or omission shall be discovered therein, a new document or instrument may
be substituted therefor in corrected form with the same force and effect as if
originally filed in the corrected form and, irrespective of the date or dates of
the actual execution and/or delivery thereof, such substitute document or
instrument shall be deemed to have been executed and/or delivered as of the date
or dates required with respect to the document or instrument for which it is
substituted. Anything in this Indenture to the contrary notwithstanding, if any
such corrective document or instrument indicates that action has been taken by
or at the request of the Company which could not have been taken had the
original document or instrument not contained such error or omission, the action
so taken shall not be invalidated or otherwise rendered ineffective but shall be
and remain in full force and effect, except to the extent that such action was a
result of willful
-9-
misconduct or bad faith. Without limiting the generality of the foregoing,
any Securities issued under the authority of such defective document or
instrument shall nevertheless be the valid obligations of the Company
entitled to the benefits of this Indenture equally and ratably with all
other Outstanding Securities, except as aforesaid.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, election, waiver or other action provided by this Indenture to be
made, 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 an agent duly appointed in writing or, alternatively, may be
embodied in and evidenced by the record of Holders voting in favor
thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders duly called and held in accordance with the provisions
of Article Thirteen, or a combination of such instruments and any such
record. Except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments or record or both are
delivered to the Trustee and, where it is hereby expressly required, to
the Company. Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or
instruments and so voting at any such meeting. Proof of execution of any
such instrument or of a writing appointing any such agent, or of the
holding by any Person of a Security, shall be sufficient for any purpose
of this Indenture and (subject to Section 901) conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section.
The record of any meeting of Holders shall be proved in the manner
provided in Section 1306.
(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 or may be proved in any other manner which the Trustee
and the Company deem sufficient. 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.
(c) The principal amount and serial numbers of Securities held by
any Person, and the date of holding the same, shall be proved by the
Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act of a Holder 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.
-10-
(e) Until such time as written instruments shall have been
delivered to the Trustee with respect to the requisite percentage of
principal amount of Securities for the action contemplated by such
instruments, any such instrument executed and delivered by or on behalf of
a Holder may be revoked with respect to any or all of such Securities by
written notice by such Holder or any subsequent Holder, proven in the
manner in which such instrument was proven.
(f) Securities of any series authenticated and delivered after
any Act of Holders may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any action taken by such
Act of Holders. 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 such action may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
(g) If the Company shall solicit from Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, 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 the record date shall be
deemed to be Holders for the purposes of determining whether Holders of
the requisite proportion of the 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 the record date.
SECTION 105. Notices, etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
election, 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, the
Trustee by any Holder or by the Company, or 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 delivered personally to an officer or
other responsible employee of the addressee, or transmitted by facsimile
transmission or other direct written electronic means to such telephone number
or other electronic communications address as the parties hereto shall from time
to time designate, or transmitted by certified or registered mail, charges
prepaid, to the applicable
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address set opposite such party's name below or to such other address as
either party hereto may from time to time designate:
If to the Trustee, to:
The Bank of New York
101 Barclay Street, 21 West
New York, New York 10286
Attention: Vice President, Corporate Trust Administration
Telephone: (212) 815-5291
Telecopy: (212) 815-5915
If to the Company, to:
Minnesota Power & Light Company
30 West Superior Street
Duluth, Minnesota 55802
Attention: James K. Vizanko
Telephone: (218) 722-2641
Telecopy: (218) 723-3912
Any communication contemplated herein shall be deemed to have
been made, given, furnished and filed if personally delivered, on the date of
delivery, if transmitted by facsimile transmission or other direct written
electronic means, on the date of transmission, and if transmitted by registered
mail, on the date of receipt.
SECTION 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where this
Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given, and shall be deemed given, to Holders if in writing and
mailed, first-class postage prepaid, to each Holder affected by such event, at
the address of such Holder as it appears in the Security Register, not later
than the latest date, if any, and not earlier than the earliest date, if any,
prescribed for the giving of such notice.
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 to
Holders by mail, then such notification as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every purpose
hereunder. 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.
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Any notice required by this Indenture may be waived in writing by
the Person entitled to receive such notice, either before or after the event
otherwise to be specified therein, 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.
SECTION 107. Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or conflicts
with another provision hereof which is required or deemed to be included in this
Indenture by, or is otherwise governed by, any of the provisions of the Trust
Indenture Act, such other provision shall control; and if any provision hereof
otherwise conflicts with the Trust Indenture Act, the Trust Indenture Act shall
control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings in this Indenture and the Table
of Contents are for convenience only and shall not affect the construction
hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company and
Trustee shall bind their respective successors and assigns, whether so expressed
or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or the Securities shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or the Securities, express or implied,
shall give to any Person, other than the parties hereto, their successors
hereunder, the Holders and, so long as the notice described in Section 1513
hereof has not been given, the holders of Senior Indebtedness, any benefit or
any legal or equitable right, remedy or claim under this Indenture; provided,
however, if the Property Trustee fails to enforce its rights with respect to the
Securities or the related Trust Agreement, a holder of Preferred Securities may
institute a legal proceeding directly against the Company to enforce the
Property Trustee's rights with respect to the Securities or such Trust
Agreement, to the fullest extent permitted by law, without first instituting any
legal proceeding against the Property Trustee or any other person or entity.
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SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York, except to the
extent that the law of any other jurisdiction shall be mandatorily applicable.
SECTION 113. 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 other than a provision in Securities of any series, or in the Board
Resolution or Officer's Certificate which establishes the terms of the
Securities of such series, which specifically states that such provision shall
apply in lieu of this Section) 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 at such Place of Payment, 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, and in the same amount, as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity, as the case may be, and, if such
payment is made or duly provided for on such Business Day, no interest shall
accrue on the amount so payable for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be, to such
Business Day.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
The definitive Securities of each series shall be in
substantially the form or forms thereof established in the indenture
supplemental hereto establishing such series or in a Board Resolution
establishing such series, or in an Officer's Certificate pursuant to such
supplemental indenture or Board Resolution, 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 or forms of
Securities of any series are established in a Board Resolution or in an
Officer's Certificate pursuant to a Board Resolution, such Board Resolution and
Officer's Certificate, if any, shall be delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
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Unless otherwise specified as contemplated by Section 301, the
Securities of each series shall be issuable in registered form without coupons.
The definitive Securities shall be produced in such manner as shall be
determined by the officers executing such Securities, as evidenced by their
execution thereof.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in
substantially the form set forth below:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
---------------------------------
as Trustee
By:
------------------------------
Authorized Signatory
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited; provided,
however, that all Securities shall be issued to a Trust in exchange for
securities of the Company or to evidence loans by a Trust of the proceeds of the
issuance of Preferred Securities of such Trust plus the amount deposited by the
Company with such Trust from time to time.
The Securities may be issued in one or more series. Prior to the
authentication and delivery of Securities of any series there shall be
established by specification in a supplemental indenture or in a Board
Resolution, or in an Officer's Certificate pursuant to a supplemental indenture
or a Board Resolution:
(a) the title of the Securities of such series (which shall
distinguish the Securities of such series from Securities of all other
series);
(b) any limit upon the aggregate principal amount of the
Securities of such series which may be authenticated and delivered under
this Indenture (except for
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Securities authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Securities of such series
pursuant to Section 304, 305, 306, 406 or 1206 and except for any
Securities which, pursuant to Section 303, are deemed never to have
been authenticated and delivered hereunder);
(c) the Person or Persons (without specific identification) to
whom interest on Securities of such series shall be payable on any
Interest Payment Date, if other than the Persons in whose names such
Securities (or one or more Predecessor Securities) are registered at the
close of business on the Regular Record Date for such interest;
(d) the date or dates on which the principal of the Securities of
such series is payable or any formulary or other method or other means by
which such date or dates shall be determined, by reference or otherwise
(without regard to any provisions for redemption, prepayment,
acceleration, purchase or extension);
(e) the rate or rates at which the Securities of such series
shall bear interest, if any (including the rate or rates at which overdue
principal shall bear interest, if different from the rate or rates at
which such Securities shall bear interest prior to Maturity, and, if
applicable, the rate or rates at which overdue premium or interest shall
bear interest, if any), or any formulary or other method or other means by
which such rate or rates shall be determined, by reference or otherwise;
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, if any, for the interest payable on such Securities on any
Interest Payment Date; the right of the Company, if any, to extend the
interest payment periods and the duration of any such extension as
contemplated by Section 311; and the basis of computation of interest, if
other than as provided in Section 310;
(f) the place or places at which or methods by which (1) the
principal of and premium, if any, and interest, if any, on Securities of
such series shall be payable, (2) registration of transfer of Securities
of such series may be effected, (3) exchanges of Securities of such series
may be effected and (4) notices and demands to or upon the Company in
respect of the Securities of such series and this Indenture may be served;
the Security Registrar for such series; and if such is the case, that the
principal of such Securities shall be payable without presentment or
surrender thereof;
(g) the period or periods within which, or the date or dates on
which, the price or prices at which and the terms and conditions upon
which the Securities of such series may be redeemed, in whole or in part,
at the option of the Company and any restrictions on such redemptions,
including but not limited to a restriction on a partial redemption by the
Company of the Securities of any series, resulting in delisting of such
Securities from any national exchange;
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(h) the obligation or obligations, if any, of the Company to
redeem or purchase the Securities of such series pursuant to any sinking
fund or other mandatory redemption provisions or at the option of a Holder
thereof and the period or periods within which or the date or dates on
which, the price or prices at which and the terms and conditions upon
which such Securities shall be redeemed or purchased, in whole or in part,
pursuant to such obligation, and applicable exceptions to the requirements
of Section 404 in the case of mandatory redemption or redemption at the
option of the Holder;
(i) the denominations in which Securities of such series shall be
issuable if other than denominations of $25 and any integral multiple
thereof;
(j) the currency or currencies, including composite currencies,
in which payment of the principal of and premium, if any, and interest, if
any, on the Securities of such series shall be payable (if other than in
Dollars);
(k) if the principal of or premium, if any, or interest, if any,
on the Securities of such series are to be payable, at the election of the
Company or a Holder thereof, in a coin or currency other than that in
which the Securities are stated to be payable, the period or periods
within which and the terms and conditions upon which, such election may be
made;
(l) if the principal of or premium, if any, or interest, if any,
on the Securities of such series are to be payable, or are to be payable
at the election of the Company or a Holder thereof, in securities or other
property, the type and amount of such securities or other property, or the
formulary or other method or other means by which such amount shall be
determined, and the period or periods within which, and the terms and
conditions upon which, any such election may be made;
(m) if the amount payable in respect of principal of or premium,
if any, or interest, if any, on the Securities of such series may be
determined with reference to an index or other fact or event ascertainable
outside this Indenture, the manner in which such amounts shall be
determined to the extent not established pursuant to clause (e) of this
paragraph;
(n) if other than the principal amount thereof, the portion of
the principal amount of Securities of such series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 802;
(o) any Events of Default, in addition to those specified in
Section 801, with respect to the Securities of such series, and any
covenants of the Company for the benefit of the Holders of the Securities
of such series, in addition to those set forth in Article Six;
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(p) the terms, if any, pursuant to which the Securities of such
series may be converted into or exchanged for shares of capital stock or
other securities of the Company or any other Person;
(q) the obligations or instruments, if any, which shall be
considered to be Government Obligations in respect of the Securities of
such series denominated in a currency other than Dollars or in a composite
currency, and any additional or alternative provisions for the
reinstatement of the Company's indebtedness in respect of such Securities
after the satisfaction and discharge thereof as provided in Section 701;
(r) if the Securities of such series are to be issued in global
form, (i) any limitations on the rights of the Holder or Holders of such
Securities to transfer or exchange the same or to obtain the registration
of transfer thereof, (ii) any limitations on the rights of the Holder or
Holders thereof to obtain certificates therefor in definitive form in lieu
of temporary form and (iii) any and all other matters incidental to such
Securities;
(s) if the Securities of such series are to be issuable as bearer
securities, any and all matters incidental thereto which are not
specifically addressed in a supplemental indenture as contemplated by
clause (g) of Section 1201;
(t) to the extent not established pursuant to clause (r) of this
paragraph, any limitations on the rights of the Holders of the Securities
of such Series to transfer or exchange such Securities or to obtain the
registration of transfer thereof; and if a service charge will be made for
the registration of transfer or exchange of Securities of such series the
amount or terms thereof;
(u) any exceptions to Section 113, or variation in the definition
of Business Day, with respect to the Securities of such series;
(v) the designation of the Trust to which Securities of such
series are to be issued; and
(w) any other terms of the Securities of such series not
inconsistent with the provisions of this Indenture.
All Securities of any one series shall be substantially
identical, except as to principal amount and date of issue and except as may be
set forth in the terms of such series as contemplated above. The Securities of
each series shall be subordinated in right of payment to Senior Indebtedness as
provided in Article Fifteen.
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SECTION 302. Denominations.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, the Securities of each series shall be
issuable in denominations of $25 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, the Securities shall be executed on behalf
of the Company by an Authorized Officer and may have the corporate seal of the
Company affixed thereto or reproduced thereon attested by any other Authorized
Officer or by the Secretary or an Assistant Secretary of the Company. The
signature of any or all of these officers on the Securities may be manual or
facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at the time of execution Authorized Officers or the
Secretary or an Assistant Secretary 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.
The Trustee shall authenticate and deliver Securities of a
series, for original issue, at one time or from time to time in accordance with
the Company Order referred to below, upon receipt by the Trustee of:
(a) the instrument or instruments establishing the form or forms
and terms of such series, as provided in Sections 201 and 301;
(b) a Company Order requesting the authentication and delivery of
such Securities and, to the extent that the terms of such Securities shall
not have been established in an indenture supplemental hereto or in a
Board Resolution, or in an Officer's Certificate pursuant to a
supplemental indenture or Board Resolution, all as contemplated by
Sections 201 and 301, establishing such terms;
(c) the Securities of such series, executed on behalf of the
Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect that:
(i) the form or forms of such Securities have been duly
authorized by the Company and have been established in
conformity with the provisions of this Indenture;
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(ii) the terms of such Securities have been duly authorized
by the Company and have been established in conformity with
the provisions of this Indenture; and
(iii) such Securities, when authenticated and delivered by
the Trustee and issued and delivered by the Company in the
manner and subject to any conditions specified in such Opinion
of Counsel, will have been duly issued under this Indenture
and will constitute valid and legally binding obligations of
the Company, entitled to the benefits provided by this
Indenture, and enforceable in accordance with their terms,
subject, as to enforcement, to laws relating to or affecting
generally the enforcement of creditors' rights, including,
without limitation, bankruptcy and insolvency laws and to
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
If the form or terms of the Securities of any series have been
established by or pursuant to a Board Resolution or an Officer's Certificate as
permitted by Sections 201 or 301, the Trustee shall not be required to
authenticate such Securities if the issuance of such Securities pursuant to this
Indenture will materially or adversely 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.
Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, each Security shall be dated the date of
its authentication.
Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, 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 or an Authenticating Agent
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.
Notwithstanding the foregoing, if any Security shall have been authenticated and
delivered hereunder to the Company, or any Person acting on its behalf, but
shall never have been issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section 309
together with a written statement (which need not comply with Section 102 and
need not be accompanied by an Opinion of Counsel) stating that such Security has
never been issued and sold by the Company, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits hereof.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series,
the Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary
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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, 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; provided, however, that temporary Securities need
not recite specific redemption, sinking fund, conversion or exchange provisions.
Unless otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, after the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable, without charge to the Holder thereof, for definitive Securities of
such series upon surrender of such temporary Securities at the office or agency
of the Company maintained pursuant to Section 602 in a Place of Payment for such
Securities. Upon such surrender of temporary Securities for such exchange, the
Company shall, except as aforesaid, execute and the Trustee shall authenticate
and deliver in exchange therefor definitive Securities of the same series, of
authorized denominations and of like tenor and aggregate principal amount.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept in each office designated
pursuant to Section 602, with respect to the Securities of each series, a
register (all registers kept in accordance with this Section being 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 of such series and the registration of transfer thereof. The
Company shall designate one Person to maintain the Security Register for the
Securities of each series on a consolidated basis, and such Person is referred
to herein, with respect to such series, as the "Security Registrar." Anything
herein to the contrary notwithstanding, the Company may designate one or more of
its offices as an office in which a register with respect to the Securities of
one or more series shall be maintained, and the Company may designate itself the
Security Registrar with respect to one or more of such series. The Security
Register shall be open for inspection by the Trustee and the Company at all
reasonable times.
Except as otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, upon surrender for registration of
transfer of any Security of such series at the office or agency of the Company
maintained pursuant to Section 602 in a Place of Payment for such series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of authorized denominations and of like tenor and aggregate
principal amount.
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Except as otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, any Security of such series may be
exchanged at the option of the Holder, for one or more new Securities of the
same series, of authorized denominations and of like tenor and aggregate
principal amount, upon surrender of the Securities to be exchanged at any such
office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities delivered upon any registration of transfer or
exchange of Securities shall be 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, the Trustee or
the Security Registrar) be duly endorsed or shall be accompanied by a written
instrument of transfer in form satisfactory to the Company, the Trustee or the
Security Registrar, as the case may be, duly executed by the Holder thereof or
his attorney duly authorized in writing.
Unless otherwise specified as contemplated by Section 301 with
respect to Securities of any series, 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 304, 406 or 1206 not
involving any transfer.
The Company shall not be required to execute or to provide for
the registration of transfer of or the exchange of (a) Securities of any series
during a period of 15 days immediately preceding the date of the mailing of any
notice of redemption of such Securities called for redemption or (b) any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
SECTION 306. 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 (a)
evidence to their satisfaction of the ownership of and the destruction, loss or
theft of any Security and (b) such security or indemnity as may be reasonably
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
is held by a Person purporting to be the owner of such Security, the Company
shall execute and the Trustee shall authenticate and deliver, in lieu of any
such
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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.
Notwithstanding the foregoing, 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
reasonable 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 other than
the Holder of such new Security, and any such new Security shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Securities of such 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 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, 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.
Subject to Section 311, 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 related 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 (a) or (b) below:
(a) 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 date (herein called 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 amount of money equal to the aggregate amount proposed
to be paid in
-23-
respect of such Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit on or prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of
the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall 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 promptly 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 the address of such Holder 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.
(b) 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 clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section
305, 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 308. 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 absolute
owner of such Security for the purpose of receiving payment of principal of and
premium, if any, and (subject to Sections 305 and 307) interest, if any, 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.
SECTION 309. Cancellation by Security Registrar.
All Securities surrendered for payment, redemption, registration
of transfer or exchange shall, if surrendered to any Person other than the
Security Registrar, be delivered to the Security Registrar and, if not
theretofore canceled, shall be promptly canceled by the
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Security Registrar. The Company may at any time deliver to the Security
Registrar for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever or which
the Company shall not have issued and sold, and all Securities so delivered
shall be promptly canceled by the Security Registrar. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Security Registrar shall be disposed of in accordance
with a Company Order delivered to the Security Registrar and the Trustee, and
the Security Registrar shall promptly deliver a certificate of disposition to
the Trustee and the Company unless, by a Company Order, similarly delivered, the
Company shall direct that canceled Securities be returned to it. The Security
Registrar shall promptly deliver evidence of any cancellation of a Security in
accordance with this Section 309 to the Trustee and the Company.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year consisting of twelve 30-day months and
for any period shorter than a full month, on the basis of the actual number of
days elapsed in such period.
SECTION 311. Extension of Interest Payment.
The Company shall have the right at any time, so long as the
Company is not in default in the payment of interest on the Securities of any
series hereunder, to extend interest payment periods on all Securities of one or
more series, if so specified as contemplated by Section 301 with respect to such
Securities and upon such terms as may be specified as contemplated by Section
301 with respect to such Securities.
SECTION 312. Additional Interest.
So long as any Preferred Securities remain outstanding, if the
Trust which issued such Preferred Securities shall be required to pay, with
respect to its income derived from the interest payments on the Securities of
any series, any amounts for or on account of any taxes, duties, assessments or
governmental charges of whatever nature imposed by the United States, or any
other taxing authority, then, in any such case, the Company will pay as interest
on such series such additional interest ("Additional Interest") as may be
necessary in order that the net amounts received and retained by such Trust
after the payment of such taxes, duties, assessments or governmental charges
shall result in such Trust's having such funds as it would have had in the
absence of the payment of such taxes, duties, assessments or governmental
charges.
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ARTICLE FOUR
Redemption of Securities
SECTION 401. 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 301 for Securities of such
series) in accordance with this Article.
SECTION 402. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution or an Officer's Certificate. 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 in
writing of such Redemption Date and of the principal amount of such Securities
to be redeemed. In the case of any redemption of Securities (a) prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture or (b) pursuant to an election of the
Company which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Officer's Certificate
evidencing compliance with such restriction or condition.
SECTION 403. Selection 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 by the Trustee from
the Outstanding Securities of such series not previously called for redemption,
by such method as shall be provided for any particular series, or, in the
absence of any such provision, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to the minimum authorized denomination for Securities of such 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 such series; provided, however, that if, as indicated in an
Officer's Certificate, the Company shall have offered to purchase all or any
principal amount of the Securities then Outstanding of any series, and less than
all of such Securities as to which such offer was made shall have been tendered
to the Company for such purchase, the Trustee, if so directed by Company Order,
shall select for redemption all or any principal amount of such Securities which
have not been so tendered.
The Trustee shall promptly notify the Company and the Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected to be redeemed in part, 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 Securities shall relate,
in the case of any Securities
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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.
SECTION 404. Notice of Redemption.
Notice of redemption shall be given in the manner provided in
Section 106 to the Holders of the Securities to be redeemed not less than 30 nor
more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any series are to be
redeemed, the identification of the particular Securities to be redeemed
and the portion of the principal amount of any Security to be redeemed in
part,
(d) that on the Redemption Date the Redemption Price, together
with accrued interest, if any, to the Redemption Date, 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,
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and accrued interest, if
any, unless it shall have been specified as contemplated by Section 301
with respect to such Securities that such surrender shall not be required,
(f) that the redemption is for a sinking or other fund, if such
is the case, and
(g) such other matters as the Company shall deem desirable or
appropriate.
Unless otherwise specified with respect to any Securities in
accordance with Section 301, with respect to any notice of redemption of
Securities at the election of the Company, unless, upon the giving of such
notice, such Securities shall be deemed to have been paid in accordance with
Section 701, such notice may state that such redemption shall be conditional
upon the receipt by the Paying Agent or Agents for such Securities, on or prior
to the date fixed for such redemption, of money sufficient to pay the principal
of and premium, if any, and interest, if any, on such Securities and that if
such money shall not have been so received such notice shall be of no force or
effect and the Company shall not be required to redeem such Securities. In the
event that such notice of redemption contains such a condition and such money is
not so received, the redemption shall not be made and within a reasonable time
thereafter notice shall be given, in the manner in which the notice of
redemption was given, that such money was not so received and such redemption
was not
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required to be made, and the Paying Agent or Agents for the Securities otherwise
to have been redeemed shall promptly return to the Holders thereof any of such
Securities which had been surrendered for payment upon such redemption.
Notice of redemption of Securities to be redeemed at the election
of the Company, and any notice of non-satisfaction of a condition for redemption
as aforesaid, shall be given by the Company or, at the Company's request, by the
Security Registrar in the name and at the expense of the Company. Notice of
mandatory redemption of Securities shall be given by the Security Registrar in
the name and at the expense of the Company.
SECTION 405. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, and the
conditions, if any, set forth in such notice having been satisfied, the
Securities or portions thereof 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, in the case of an unconditional notice of redemption,
the Company shall default in the payment of the Redemption Price and accrued
interest, if any) such Securities or portions thereof, if interest-bearing,
shall cease to bear interest. Upon surrender of any such Security for redemption
in accordance with such notice, such Security or portion thereof shall be paid
by the Company at the Redemption Price, together with accrued interest, if any,
to the Redemption Date; provided, however, that no such surrender shall be a
condition to such payment if so specified as contemplated by Section 301 with
respect to such Security; and provided, further, that except as otherwise
specified as contemplated by Section 301 with respect to such Security, any
installment of interest on any Security the Stated Maturity of which installment
is on or prior to the Redemption Date shall be payable to the Holder of such
Security, or one or more Predecessor Securities, registered as such at the close
of business on the related Regular Record Date according to the terms of such
Security and subject to the provisions of Section 307.
SECTION 406. Securities Redeemed in Part.
Upon the surrender of any Security which is to be redeemed only
in part 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), 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, of any
authorized denomination requested by such Holder and of like tenor and 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 FIVE
Sinking Funds
SECTION 501. Applicability of Article.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of the Securities of any series, except as otherwise
specified as contemplated by Section 301 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 502. Each sinking fund payment shall be applied
to the redemption of Securities of the series in respect of which it was made as
provided for by the terms of such Securities.
SECTION 502. Satisfaction of Sinking Fund Payments with Securities.
The Company (a) may deliver to the Trustee Outstanding Securities
(other than any previously called for redemption) of a series in respect of
which a mandatory sinking fund payment is to be made and (b) may apply as a
credit Securities of such 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 or Outstanding Securities purchased by the Company, in each case
in satisfaction of all or any part of such mandatory sinking fund payment with
respect to the Securities of such series; provided, however, that no Securities
shall be applied in satisfaction of a mandatory sinking fund payment if such
Securities shall have been previously so applied. Securities so applied 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 mandatory sinking fund payment shall be reduced
accordingly.
SECTION 503. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for
the Securities of any series, the Company shall deliver to the Trustee an
Officer's Certificate specifying:
(a) the amount of the next succeeding mandatory sinking fund
payment for such series;
(b) the amount, if any, of the optional sinking fund payment to
be made together with such mandatory sinking fund payment;
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(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking fund payment
which is to be satisfied by the payment of cash;
(e) the portion, if any, of such aggregate sinking fund payment
which is to be satisfied by delivering and crediting Securities of such
series pursuant to Section 502 and stating the basis for such credit and
that such Securities have not previously been so credited, and the Company
shall also deliver to the Trustee any Securities to be so delivered. If
the Company shall not deliver such Officer's Certificate, the next
succeeding sinking fund payment for such series shall be made entirely in
cash in the amount of the mandatory sinking fund payment. 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 403 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 404. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 405 and 406.
ARTICLE SIX
Covenants
SECTION 601. Payment of Principal, Premium and Interest.
The Company shall pay the principal of and premium, if any, and
interest, if any (including Additional Interest), on the Securities of each
series in accordance with the terms of such Securities and this Indenture.
SECTION 602. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for the
Securities of each series an office or agency where payment of such Securities
shall be made, where the registration of transfer or exchange of such Securities
may be effected and where notices and demands to or upon the Company in respect
of such Securities and this Indenture may be served. The Company shall give
prompt written notice to the Trustee of the location, and any change in the
location, of each such office or agency and prompt notice to the Holders of any
such change in the manner specified in Section 106. If at any time the Company
shall fail to maintain any such required office or agency in respect of
Securities of any series, or shall fail to furnish the Trustee with the address
thereof, payment of such Securities shall be made, registration of transfer or
exchange thereof may be effected and notices and demands in respect thereof may
be served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent for all such purposes in any such event.
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The Company may also from time to time designate one or more
other offices or agencies with respect to the Securities of one or more series,
for any or all of the foregoing purposes and may from time to time rescind such
designations; provided, however, that, unless otherwise specified as
contemplated by Section 301 with respect to the Securities of such series, no
such designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency for such purposes in each Place of
Payment for such Securities in accordance with the requirements set forth above.
The Company shall give prompt written notice to the Trustee, and prompt notice
to the Holders in the manner specified in Section 106, of any such designation
or rescission and of any change in the location of any such other office or
agency.
Anything herein to the contrary notwithstanding, any office or
agency required by this Section may be maintained at an office of the Company,
in which event the Company shall perform all functions to be performed at such
office or agency.
SECTION 603. 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 the Securities of any series, it shall, on or before each due date of
the principal of and premium, if any, and interest, if any, on any of such
Securities, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and premium or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided. The Company shall promptly notify the Trustee of any
failure by the Company (or any other obligor on such Securities) to make any
payment of principal of or premium, if any, or interest, if any, on such
Securities.
Whenever the Company shall have one or more Paying Agents for the
Securities of any series, it shall, on or before each due date of the principal
of and premium, if any, and interest, if any, on such Securities, deposit with
such Paying Agents sums sufficient (without duplication) to pay the principal
and premium 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 shall promptly notify the
Trustee of any failure by it so to act.
The Company shall cause each Paying Agent for the Securities of
any series, other than the Company or 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 shall:
(a) hold all sums held by it for the payment of the principal of
and premium, if any, or interest, if any, on such Securities 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;
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(b) give the Trustee notice of any failure by the Company (or any
other obligor upon such Securities) to make any payment of principal of or
premium, if any, or interest, if any, on such Securities; and
(c) 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 and furnish to the Trustee such
information as it possesses regarding the names and addresses of the
Persons entitled to such sums.
The Company may at any time 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, if
so stated in a Company Order delivered to the Trustee, in accordance with the
provisions of Article Seven; 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, if any, on any Security 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, upon such payment or
discharge, the Holder of such Security shall, as an unsecured general creditor
and not as a Holder of an Outstanding Security, look only to the Company for
payment of the amount so due and payable and remaining unpaid, 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 payment to the Company, may at the expense of the Company cause to be
mailed, on one occasion only, notice to such Holder 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 mailing, any unclaimed balance of such money then
remaining will be paid to the Company.
SECTION 604. Corporate Existence.
Subject to the rights of the Company under Article Eleven, the
Company shall do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence.
SECTION 605. Maintenance of Properties.
The Company shall cause (or, with respect to property owned in
common with others, make reasonable effort to cause) all its properties used or
useful in the conduct of its business to be maintained and kept in good
condition, repair and working order and shall cause (or, with respect to
property owned in common with others, make reasonable effort to
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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
conducted; provided, however, that nothing in this Section shall prevent the
Company from discontinuing, or causing the discontinuance of, the operation and
maintenance of any of its properties if such discontinuance is, in the judgment
of the Company, desirable in the conduct of its business.
SECTION 606. Annual Officer's Certificate as to Compliance.
Not later than September 15 in each year, commencing September
15, 1996, the Company shall deliver to the Trustee an Officer's Certificate
which need not comply with Section 102, executed by the principal executive
officer, the principal financial officer or the principal accounting officer of
the Company, as to such officer's knowledge of the Company's compliance with all
conditions and covenants under this Indenture, such compliance to be determined
without regard to any period of grace or requirement of notice under this
Indenture.
SECTION 607. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in (a) Section 602 or any additional
covenant or restriction specified with respect to the Securities of any series,
as contemplated by Section 301, if before the time for such compliance the
Holders of at least a majority in aggregate principal amount of the Outstanding
Securities of all series with respect to which compliance with Section 602 or
such additional covenant or restriction is to be omitted, considered as one
class, shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or condition
and (b) Section 604, 605 or Article Eleven if before the time for such
compliance the Holders of at least a majority in principal amount of Securities
Outstanding under this Indenture shall, by Act of such Holders, either waive
such compliance in such instance or generally waive compliance with such term,
provision or condition; but, in the case of (a) or (b), no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect; provided, however,
so long as a Trust holds Securities of any series, such Trust may not waive
compliance or waive any default in compliance by the Company with any covenant
or other term contained in this Indenture or the Securities of such series
without the approval of the holders of at least a majority in aggregate
liquidation preference of the outstanding Preferred Securities issued by such
Trust affected, obtained as provided in the Trust Agreement pertaining to such
Trust.
SECTION 608. Restriction on Payment of Dividends.
So long as any Preferred Securities of any series remain
outstanding, the Company shall not declare or pay any dividend on, or redeem,
purchase, acquire or make a
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liquidation payment with respect to, any of the Company's capital stock, or make
any guarantee payments with respect to the foregoing (other than payments under
the Guarantee relating to such Preferred Securities) if at such time (a) the
Company shall be in default with respect to its payment or other obligations
under the Guarantee relating to such Preferred Securities, (b) there shall have
occurred and be continuing a payment default (whether before or after expiration
of any period of grace) or an Event of Default hereunder or (c) the Company
shall have elected to extend any interest payment period as provided in Section
311, and any such period, or any extension thereof, shall be continuing.
SECTION 609. Maintenance of Trust Existence.
So long as Preferred Securities of any series remain outstanding,
the Company shall (i) maintain direct or indirect ownership of all interests in
the Trust which issued such Preferred Securities, other than such Preferred
Securities, (ii) not voluntarily (to the extent permitted by law) dissolve,
liquidate or wind up such Trust, except in connection with a distribution of the
Securities to the holders of the Preferred Securities in liquidation of such
Trust, (iii) remain the sole Depositor under the Trust Agreement (the
"Depositor") of such Trust and timely perform in all material respects all of
its duties as Depositor of such Trust, and (iv) use reasonable efforts to cause
such Trust to remain a business trust and otherwise continue to be treated as a
grantor trust for Federal income tax purposes provided that any permitted
successor to the Company under this Indenture may succeed to the Company's
duties as Depositor of such Trust; and provided further that the Company may
permit such Trust to consolidate or merge with or into another business trust or
other permitted successor under the Trust Agreement pertaining to such Trust so
long as the Company agrees to comply with this Section 609 with respect to such
successor business trust or other permitted successor.
SECTION 610. Rights of Holders of Preferred Securities.
The Company agrees that, for so long as any Preferred Securities
remain outstanding, its obligations under this Indenture will also be for the
benefit of the holders from time to time of Preferred Securities, and the
Company acknowledges and agrees that if the Property Trustee fails to enforce
its rights with respect to the Securities or the related Trust Agreement, a
holder of Preferred Securities may institute a legal proceeding directly against
the Company to enforce the Property Trustee's rights with respect to the
Securities or such Trust Agreement, to the fullest extent permitted by law,
without first instituting any legal proceeding against the Property Trustee or
any other person or entity.
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ARTICLE SEVEN
Satisfaction and Discharge
SECTION 701. Defeasance.
Any Security or Securities, or any portion of the principal
amount thereof, shall be deemed to have been paid for all purposes of this
Indenture, and the entire indebtedness of the Company in respect thereof shall
be deemed to have been satisfied and discharged, if there shall have been
irrevocably deposited with the Trustee or any Paying Agent (other than the
Company), in trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the Maturity of such
Securities or portions thereof, Government Obligations, which shall not
contain provisions permitting the redemption or other prepayment thereof
at the option of the issuer thereof, the principal of and the interest on
which when due, without any regard to reinvestment thereof, will provide
moneys which, together with the money, if any, deposited with or held by
the Trustee or such Paying Agent, shall be sufficient, or
(c) a combination of (a) or (b) which shall be sufficient,
to pay when due the principal of and premium, if any, and interest, if any, due
and to become due on such Securities or portions thereof on or prior to
Maturity; provided, however, that in the case of the provision for payment or
redemption of less than all the Securities of any series, such Securities or
portions thereof shall have been selected by the Trustee as provided herein and,
in the case of a redemption, the notice requisite to the validity of such
redemption shall have been given or irrevocable authority shall have been given
by the Company to the Trustee to give such notice, under arrangements
satisfactory to the Trustee; and provided, further, that the Company shall have
delivered to the Trustee and such Paying Agent:
(x) if such deposit shall have been made prior to the
Maturity of such Securities, a Company Order stating that the
money and Government Obligations deposited in accordance with
this Section shall be held in trust, as provided in Section
703; and
(y) if Government Obligations shall have been deposited, an
Opinion of Counsel that the obligations so deposited
constitute Government Obligations and do not contain
provisions permitting the redemption or other prepayment at
the option of the issuer thereof, and an opinion of an
independent public accountant of nationally recognized
standing, selected by the Company, to the effect that the
requirements set forth in clause (b) above have been
satisfied; and
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(z) if such deposit shall have been made prior to the
Maturity of such Securities, an Officer's Certificate stating
the Company's intention that, upon delivery of such Officer's
Certificate, its indebtedness in respect of such Securities or
portions thereof will have been satisfied and discharged as
contemplated in this Section.
Upon the deposit of money or Government Obligations, or both, in
accordance with this Section, together with the documents required by clauses
(x), (y) and (z) above, the Trustee shall, upon receipt of a Company Request,
acknowledge in writing that the Security or Securities or portions thereof with
respect to which such deposit was made are deemed to have been paid for all
purposes of this Indenture and that the entire indebtedness of the Company in
respect thereof has been satisfied and discharged as contemplated in this
Section. In the event that all of the conditions set forth in the preceding
paragraph shall have been satisfied in respect of any Securities or portions
thereof except that, for any reason, the Officer's Certificate specified in
clause (z) shall not have been delivered, such Securities or portions thereof
shall nevertheless be deemed to have been paid for all purposes of this
Indenture, and the Holders of such Securities or portions thereof shall
nevertheless be no longer entitled to the benefits of this Indenture or of any
of the covenants of the Company under Article Six (except the covenants
contained in Sections 602 and 603) or any other covenants made in respect of
such Securities or portions thereof as contemplated by Section 301, but the
indebtedness of the Company in respect of such Securities or portions thereof
shall not be deemed to have been satisfied and discharged prior to Maturity for
any other purpose, and the Holders of such Securities or portions thereof shall
continue to be entitled to look to the Company for payment of the indebtedness
represented thereby; and, upon Company Request, the Trustee shall acknowledge in
writing that such Securities or portions thereof are deemed to have been paid
for all purposes of this Indenture.
If payment at Stated Maturity of less than all of the Securities
of any series is to be provided for in the manner and with the effect provided
in this Section, the Security Registrar shall select such Securities, or
portions of principal amount thereof, in the manner specified by Section 403 for
selection for redemption of less than all the Securities of a series.
In the event that Securities which shall be deemed to have been
paid for purposes of this Indenture, and, if such is the case, in respect of
which the Company's indebtedness shall have been satisfied and discharged, all
as provided in this Section do not mature and are not to be redeemed within the
60 day period commencing with the date of the deposit of moneys or Government
Obligations, as aforesaid, the Company shall, as promptly as practicable, give a
notice, in the same manner as a notice of redemption with respect to such
Securities, to the Holders of such Securities to the effect that such deposit
has been made and the effect thereof.
Notwithstanding that any Securities shall be deemed to have been
paid for purposes of this Indenture, as aforesaid, the obligations of the
Company and the Trustee in respect of such Securities under Sections 304, 305,
306, 404, 503 (as to notice of redemption), 602, 603, 907 and 915 and this
Article Seven shall survive.
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The Company shall pay, and shall indemnify the Trustee or any
Paying Agent with which Government Obligations shall have been deposited as
provided in this Section against, any tax, fee or other charge imposed on or
assessed against such Government Obligations or the principal or interest
received in respect of such Government Obligations, including, but not limited
to, any such tax payable by any entity deemed, for tax purposes, to have been
created as a result of such deposit.
Anything herein to the contrary notwithstanding, (a) if, at any
time after a Security would be deemed to have been paid for purposes of this
Indenture, and, if such is the case, the Company's indebtedness in respect
thereof would be deemed to have been satisfied or discharged, pursuant to this
Section (without regard to the provisions of this paragraph), the Trustee or any
Paying Agent, as the case may be, shall be required to return the money or
Government Obligations, or combination thereof, deposited with it as aforesaid
to the Company or its representative under any applicable Federal or State
bankruptcy, insolvency or other similar law, such Security shall thereupon be
deemed retroactively not to have been paid and any satisfaction and discharge of
the Company's indebtedness in respect thereof shall retroactively be deemed not
to have been effected, and such Security shall be deemed to remain Outstanding
and (b) any satisfaction and discharge of the Company's indebtedness in respect
of any Security shall be subject to the provisions of the last paragraph of
Section 603.
SECTION 702. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect (except as hereinafter expressly provided), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) no Securities remain Outstanding hereunder; and
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company;
provided, however, that if, in accordance with the last paragraph of Section
701, any Security, previously deemed to have been paid for purposes of this
Indenture, shall be deemed retroactively not to have been so paid, this
Indenture shall thereupon be deemed retroactively not to have been satisfied and
discharged, as aforesaid, and to remain in full force and effect, and the
Company shall execute and deliver such instruments as the Trustee shall
reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge of this Indenture
as aforesaid, the obligations of the Company and the Trustee under Sections 304,
305, 306, 404, 503 (as to notice of redemption), 602, 603, 907 and 915 and this
Article Seven shall survive.
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Upon satisfaction and discharge of this Indenture as provided in
this Section, the Trustee shall assign, transfer and turn over to the Company,
subject to the lien provided by Section 907, any and all money, securities and
other property then held by the Trustee for the benefit of the Holders of the
Securities other than money and Government Obligations held by the Trustee
pursuant to Section 703.
SECTION 703. Application of Trust Money.
Neither the Government Obligations nor the money deposited
pursuant to Section 701, nor the principal or interest payments on any such
Government Obligations, shall be withdrawn or used for any purpose other than,
and shall be held in trust for, the payment of the principal of and premium, if
any, and interest, if any, on the Securities or portions of principal amount
thereof in respect of which such deposit was made, all subject, however, to the
provisions of Section 603; provided, however, that, so long as there shall not
have occurred and be continuing an Event of Default any cash received from such
principal or interest payments on such Government Obligations, if not then
needed for such purpose, shall, to the extent practicable, be invested in
Government Obligations of the type described in clause (b) in the first
paragraph of Section 701 maturing at such times and in such amounts as shall be
sufficient to pay when due the principal of and premium, if any, and interest,
if any, due and to become due on such Securities or portions thereof on and
prior to the Maturity thereof, and interest earned from such reinvestment shall
be paid over to the Company as received, free and clear of any trust, lien or
pledge under this Indenture except the lien provided by Section 907; and
provided, further, that, so long as there shall not have occurred and be
continuing an Event of Default, any moneys held in accordance with this Section
on the Maturity of all such Securities in excess of the amount required to pay
the principal of and premium, if any, and interest, if any, then due on such
Securities shall be paid over to the Company free and clear of any trust, lien
or pledge under this Indenture except the lien provided by Section 907; and
provided, further, that if an Event of Default shall have occurred and be
continuing, moneys to be paid over to the Company pursuant to this Section shall
be held until such Event of Default shall have been waived or cured.
ARTICLE EIGHT
Events of Default; Remedies
SECTION 801. Events of Default.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events:
(a) failure to pay interest, if any, including any Additional
Interest, on any Security of such series within 30 days after the same
becomes due and payable (whether or not payment is prohibited by the
provisions of Article Fifteen hereof); provided, however, that a valid
extension of the interest payment period by the
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Company as contemplated in Section 311 of this Indenture shall not
constitute a failure to pay interest for this purpose; or
(b) failure to pay the principal of or premium, if any, on any
Security of such series at its Maturity (whether or not payment is
prohibited by the provisions of Article Fifteen hereof); or
(c) failure to perform or breach of any covenant or warranty of
the Company in this Indenture (other than a covenant or warranty a default
in the performance of which or breach of which is elsewhere in this
Section specifically dealt with or which has expressly been included in
this Indenture solely for the benefit of one or more series of Securities
other than such series) for a period of 60 days after there has been
given, by registered or certified mail, to the Company by the Trustee, or
to the Company and the Trustee by the Holders of at least 33% in principal
amount of the Outstanding Securities of such series, a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder, unless the
Trustee, or the Trustee and the Holders of a principal amount of
Securities of such series not less than the principal amount of Securities
the Holders of which gave such notice, as the case may be, shall agree in
writing to an extension of such period prior to its expiration; provided,
however, that the Trustee, or the Trustee and the Holders of such
principal amount of Securities of such series, as the case may be, shall
be deemed to have agreed to an extension of such period if corrective
action is initiated by the Company within such period and is being
diligently pursued; or
(d) the entry by a court having jurisdiction in the premises of
(1) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (2) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition by one or more Persons other than
the Company seeking reorganization, arrangement, adjustment or composition
of or in respect of the Company under any applicable Federal or State law,
or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official for the Company or for any
substantial part of its property, or ordering the winding up or
liquidation of its affairs, and any such decree or order for relief or any
such other decree or order shall have remained unstayed and in effect for
a period of 90 consecutive days; or
(e) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in a case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement
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of any bankruptcy or insolvency case or proceeding against it, or the
filing by it of a petition or answer or consent seeking reorganization or
relief under any applicable Federal or State law, or the consent by it to
the filing of such petition or to the appointment of or taking possession
by a custodian, receiver, liquidator, assignee, trustee, sequestrator or
similar official of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due, or the authorization of such action by
the Board of Directors; or
(f) any other Event of Default specified with respect to
Securities of such series.
SECTION 802. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default due to the default in payment of principal
of, or interest on, any series of Securities or due to the default in the
performance or breach of any other covenant or warranty of the Company
applicable to the Securities of such series but not applicable to all
outstanding Securities shall have occurred and be continuing, either the Trustee
or the Holders of not less than 33% in principal amount of the Securities of
such series may then declare the principal of all Securities of such series and
interest accrued thereon to be due and payable immediately (provided that the
payment of principal and interest on such Securities shall remain subordinated
to the extent provided in Article Fifteen hereof). If an Event of Default due to
default in the performance of any other of the covenants or agreements herein
applicable to all Outstanding Securities or an Event of Default specified in
Section 801(d) or (e) shall have occurred and be continuing, either the Trustee
or the Holders of not less than 33% in principal amount of all Securities then
Outstanding (considered as one class), and not the Holders of the Securities of
any one of such series, may declare the principal of all Securities and interest
accrued thereon to be due and payable immediately (provided that the payment of
principal and interest on such Securities shall remain subordinated to the
extent provided in the Indenture).
At any time after such a declaration of acceleration with respect
to Securities of any series shall have been made and before a judgment or decree
for payment of the money due shall have been obtained by the Trustee as
hereinafter in this Article provided, the Event or Events of Default giving rise
to such declaration of acceleration shall, without further act, be deemed to
have been waived, and such declaration and its consequences shall, without
further act, be deemed to have been rescinded and annulled, if
(a) the Company shall have paid or deposited with the Trustee a
sum sufficient to pay
(1) all overdue interest on all Securities of such series;
(2) the principal of and premium, if any, on any Securities
of such series which have become due otherwise than by such
declaration of
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acceleration and interest thereon at the rate or rates
prescribed therefor in such Securities;
(3) to the extent that payment of such interest is lawful,
interest upon overdue interest, if any, at the rate or rates
prescribed therefor in such Securities;
(4) all amounts due to the Trustee under Section 907;
and
(b) any other Event or Events of Default with respect to
Securities of such series, other than the nonpayment of the principal of
Securities of such series which shall have become due solely by such
declaration of acceleration, shall have been cured or waived as provided
in Section 813.
No such rescission shall affect any subsequent Event of Default or impair any
right consequent thereon.
SECTION 803. Collection of Indebtedness and Suits for Enforcement by
Trustee.
If an Event of Default described in clause (a) or (b) of Section
801 shall have occurred and be continuing, the Company shall, upon demand of the
Trustee, pay to it, for the benefit of the Holders of the Securities of the
series with respect to which such Event of Default shall have occurred, the
whole amount then due and payable on such Securities for principal and premium,
if any, and interest, if any, and, to the extent permitted by law, interest on
premium, if any, and on any overdue principal and interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover any amounts due to the Trustee under
Section 907.
If the Company shall fail to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, 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 with respect to Securities of any series
shall have occurred and be continuing, the Trustee may in its discretion proceed
to protect and enforce its rights and the rights of the Holders of Securities of
such series 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 enforce any other proper remedy.
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SECTION 804. 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,
(a) to file and prove a claim for the whole amount of principal,
premium, if any, and interest, if any, 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 amounts due to the Trustee under Section 907) and of the Holders
allowed in such judicial proceeding, and
(b) 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 amounts due it under Section 907.
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 805. 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 in respect of which such judgment has been
recovered.
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SECTION 806. Application of Money Collected.
Subject to the provisions of Article Fifteen, any money collected
by the Trustee pursuant to this Article 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, if any, upon
presentation of the Securities in respect of which or for the benefit of which
such money shall 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 907;
Second: To the payment of the amounts then due and unpaid upon
the Securities for principal of and premium, if any, and interest, if any, 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 for principal, premium, if any, and interest,
if any, respectively; and
Third: To the payment of the remainder, if any, to the Company or
to whomsoever may be lawfully entitled to receive the same or as a court of
competent jurisdiction may direct.
SECTION 807. Limitation on Suits.
No Holder 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:
(a) such Holder shall have previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of
such series;
(b) the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of all series in respect of
which an Event of Default shall have occurred and be continuing,
considered as one class, 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;
(c) such Holder or Holders shall have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity shall have failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request shall
have been given to the Trustee during such 60-day period by the Holders of
a majority in aggregate
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principal amount of the Outstanding Securities of all series in respect of
which an Event of Default shall have occurred and be continuing,
considered as one class;
it being understood and intended that no one or more of such Holders 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 of such
Holders.
SECTION 808. 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
307 and 311) interest, if any, 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. Any
holder of related Preferred Securities shall have the right to institute suit
for the enforcement of any such payment to such holder with respect to
Securities relating to such Preferred Securities having a principal amount equal
to the aggregate liquidation preference amount of the related Preferred
Securities held by such holder.
SECTION 809. 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 shall have
been discontinued or abandoned for any reason, or shall have 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, and Trustee and such
Holder shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and such Holder
shall continue as though no such proceeding had been instituted.
SECTION 810. Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of Section
306, 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.
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SECTION 811. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to exercise
any right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 812. Control by Holders of Securities.
If an Event of Default shall have occurred and be continuing in
respect of a series of Securities, the Holders of a majority in principal amount
of the Outstanding Securities of such 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, however, that if an Event of
Default shall have occurred and be continuing with respect to more than one
series of Securities, the Holders of a majority in aggregate principal amount of
the Outstanding Securities of all such series, considered as one class, shall
have the right to make such direction, and not the Holders of the Securities of
any one of such series; and provided, further, that such direction shall not be
in conflict with any rule of law or with this Indenture. Before proceeding to
exercise any right or power hereunder at the direction of such Holders, the
Trustee shall be entitled to receive from such Holders reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred by
it in compliance with any such direction.
SECTION 813. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(a) in the payment of the principal of or premium, if any, or
interest, if any, on any Security of such series, or
(b) in respect of a covenant or provision hereof which under
Section 1202 cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected;
provided, however, that so long as a Trust holds the Securities of any series,
such Trust may not waive any past default without the consent of at least a
majority in aggregate liquidation preference of the outstanding Preferred
Securities issued by such Trust affected, obtained as provided in the Trust
Agreement pertaining to such Trust.
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Upon any such waiver, such default shall cease to exist, and any
and all Events of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 814. Undertaking for Costs.
The Company and the Trustee agree, and each Holder by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in aggregate
principal amount of the Outstanding Securities of all series in respect of which
such suit may be brought, considered as one class, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of or premium, if
any, or interest, if any, 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 815. Waiver of Stay or Extension Laws.
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 or 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 the Company (to the extent that it may
lawfully do so) 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.
ARTICLE NINE
The Trustee
SECTION 901. Certain Duties and Responsibilities.
(a) The Trustee shall have and be subject to all the duties and
responsibilities specified with respect to an indenture trustee in the
Trust Indenture Act and no implied covenants or obligations shall be read
into this Indenture against the Trustee.
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(b) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(c) Notwithstanding anything contained in this Indenture to the
contrary, the duties and responsibilities of the Trustee under this
Indenture shall be subject to the protections, exculpations and
limitations on liability afforded to the Trustee under the provisions of
the Trust Indenture Act.
(d) Whether or not therein expressly so provided, every provision
of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 902. Notice of Defaults.
The Trustee shall give notice of any default hereunder with
respect to the Securities of any series to the Holders of Securities of such
series in the manner and to the extent required to do so by the Trust Indenture
Act, unless such default shall have been cured or waived; provided, however,
that in the case of any default of the character specified in Section 801(c), no
such notice to Holders shall be given until at least 45 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time, or both, would become, an
Event of Default.
SECTION 903. Certain Rights of Trustee.
Subject to the provisions of Section 901 and to the applicable
provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting in good faith upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document reasonably believed by it to be genuine and to
have been signed 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, or
as otherwise expressly provided herein, and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(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
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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 Holder pursuant to this Indenture, unless such Holder
shall have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall (subject to applicable legal requirements) be
entitled to examine, during normal business hours, the books, records and
premises of the Company, personally or by agent or attorney;
(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
(h) the Trustee shall not be charged with knowledge of any
default or Event of Default, as the case may be, with respect to the
Securities of any series for which it is acting as Trustee unless either
(1) a Responsible Officer of the Trustee shall have actual knowledge of
the default or Event of Default, as the case may be, or (2) written notice
of such default or Event of Default, as the case may be, shall have been
given to the Trustee by the Company, any other obligor on such Securities
or by any Holder of such Securities.
SECTION 904. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities (except the
Trustee's certificates of authentication) shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes
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 905. May Hold Securities.
Each of 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 908 and 913, may otherwise deal with the Company with the same
rights it would have if it were not the Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
SECTION 906. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds, except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as expressly provided herein or otherwise agreed with, and for the sole
benefit of, the Company.
SECTION 907. Compensation and Reimbursement.
The Company shall
(a) 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);
(b) except as otherwise expressly provided herein, reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances reasonably 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 to the
extent that any such expense, disbursement or advance may be attributable
to the Trustee's negligence, wilful misconduct or bad faith; and
(c) indemnify the Trustee for, and hold it harmless from and
against, any loss, liability or expense reasonably incurred by it arising
out of or in connection with the acceptance or administration of the trust
or trusts hereunder or the performance of its duties hereunder, including
the reasonable 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, except to the extent any such loss, liability
or expense may be attributable to its negligence, wilful misconduct or bad
faith.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee as such other than
property and funds held in trust under Section 703 (except as otherwise provided
in Section 703). "Trustee" for purposes of this Section shall include any
predecessor Trustee; provided, however, that the negligence, wilful
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misconduct or bad faith of any Trustee hereunder shall not affect the rights of
any other Trustee hereunder.
In addition to the rights provided to the Trustee pursuant to the
provisions of the immediately preceding paragraph of this Section 907, when the
Trustee incurs expenses or renders services in connection with an Event of
Default specified in Section 801(d) or Section 801(e), 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.
SECTION 908. Disqualification; Conflicting Interests.
If the Trustee shall have or acquire any conflicting interest
within the meaning of the Trust Indenture Act, it shall either eliminate such
conflicting interest or resign to the extent, in the manner and with the effect,
and subject to the conditions, provided in the Trust Indenture Act and this
Indenture. For purposes of Section 310(b)(1) of the Trust Indenture Act and to
the extent permitted thereby, the Trustee, in its capacity as trustee in respect
of the Securities of any series, shall not be deemed to have a conflicting
interest arising from its capacity as trustee in respect of the Securities of
any other series. The Trust Agreement and the Guarantee Agreement pertaining to
each Trust shall be deemed to be specifically described in this Indenture for
the purposes of clause (i) of the first proviso contained in Section 310(b) of
the Trust Indenture Act.
SECTION 909. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
(a) a corporation organized and doing business under the laws of
the United States, any State or Territory thereof or the District of
Columbia, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $50,000,000 and subject
to supervision or examination by Federal or State authority, or
(b) if and to the extent permitted by the Commission by rule,
regulation or order upon application, a corporation or other Person
organized and doing business under the laws of a foreign government,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000 or the Dollar
equivalent of the applicable foreign currency and subject to supervision
or examination by authority of such foreign government or a political
subdivision thereof substantially equivalent to supervision or examination
applicable to United States institutional trustees,
and, in either case, qualified and eligible under this Article and the Trust
Indenture Act. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of such supervising or
examining authority, then for the purposes of this Section,
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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. 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 910. 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 911.
(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 911 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; provided that so long as any Preferred
Securities remain outstanding, the Trust which issued such Preferred
Securities shall not execute any Act to remove the Trustee without the
consent of the holders of a majority in aggregate liquidation preference
of Preferred Securities issued by such Trust outstanding, obtained as
provided in the Trust Agreement pertaining to such Trust.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 908 after
written request therefor by the Company or by any Holder who
has been a bona fide Holder for at least six months, or
(2) the Trustee shall cease to be eligible under Section
909 and shall fail to resign after written request therefor by
the Company or by any such Holder, 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, (x) the Company by a Board Resolution may remove the
Trustee with respect to all Securities or (y) subject to Section 814, any Holder
who has been a bona fide
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Holder 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 (other than as contemplated in clause (y) in subsection (d) of this
Section), 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 911. 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
911, become the successor Trustee with respect to the Securities of such
series and to that extent supersede the successor Trustee appointed by the
Company. 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 911, any Holder who
has been a bona fide Holder of a Security of such series for at least six
months may, on behalf of itself 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) So long as no event which is, or after notice or lapse of
time, or both, would become, an Event of Default shall have occurred and
be continuing, and except with respect to a Trustee appointed by Act of
the Holders of a majority in principal amount of the Outstanding
Securities pursuant to subsection (e) of this Section, if the Company
shall have delivered to the Trustee (i) a Board Resolution appointing a
successor Trustee, effective as of a date specified therein, and (ii) an
instrument of acceptance of such appointment, effective as of such date,
by such successor Trustee in accordance with Section 911, the Trustee
shall be deemed to have resigned as contemplated in subsection (b) of this
Section, the successor Trustee shall be deemed to have been appointed by
the Company pursuant to subsection (e) of this Section and such
appointment shall be deemed to have been accepted as contemplated in
Section 911, all as of such date, and all other provisions of this Section
and Section 911 shall be applicable to such resignation, appointment and
acceptance except to the extent inconsistent with this subsection (f).
(g) 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
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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.
SECTION 911. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of all series, 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 all sums
owed to it, 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, upon payment of all sums owed to it, 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.
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(c) Upon request of any such successor Trustee, the Company shall
execute any instruments which fully vest in and confirm to such successor
Trustee all such rights, powers and trusts referred to in subsection (a)
or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 912. 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 913. Preferential Collection of Claims Against Company.
If the Trustee shall be or become a creditor of the Company or
any other obligor upon the Securities (other than by reason of a relationship
described in Section 311(b) of the Trust Indenture Act), the Trustee shall be
subject to any and all applicable provisions of the Trust Indenture Act
regarding the collection of claims against the Company or such other obligor.
For purposes of Section 311(b) of the Trust Indenture Act:
(a) the term "cash transaction" means any transaction in which
full payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand;
(b) the term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the
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Company arising from the making, drawing, negotiating or incurring
of the draft, bill of exchange, acceptance or obligation.
SECTION 914. Co-trustees and Separate Trustees.
At any time or times, for the purpose of meeting the legal
requirements of any applicable jurisdiction, the Company and the Trustee shall
have power to appoint, and, upon the written request of the Trustee or of the
Holders of at least 33% in principal amount of the Securities then Outstanding,
the Company shall for such purpose join with the Trustee in the execution and
delivery of all instruments and agreements necessary or proper to appoint, one
or more Persons approved by the Trustee either to act as co-trustee, jointly
with the Trustee, or to act as separate trustee, in either case with such powers
as may be provided in the instrument of appointment, and to vest in such Person
or Persons, in the capacity aforesaid, any property, title, right or power
deemed necessary or desirable, subject to the other provisions of this Section.
If the Company does not join in such appointment within 15 days after the
receipt by it of a request so to do, or if an Event of Default shall have
occurred and be continuing, the Trustee alone shall have power to make such
appointment.
Should any written instrument or instruments from the Company be
required by any co-trustee or separate trustee so appointed to more fully
confirm to such co-trustee or separate trustee such property, title, right or
power, any and all such instruments shall, on request, be executed, acknowledged
and delivered by the Company.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the following
conditions:
(a) the Securities shall be authenticated and delivered, and all
rights, powers, duties and obligations hereunder in respect of the custody
of securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustee hereunder, shall be exercised
solely, by the Trustee;
(b) the rights, powers, duties and obligations hereby conferred
or imposed upon the Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed
either by the Trustee or by the Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument appointing such
co-trustee or separate trustee, except to the extent that under any law of
any jurisdiction in which any particular act is to be performed, the
Trustee shall be incompetent or unqualified to perform such act, in which
event such rights, powers, duties and obligations shall be exercised and
performed by such co-trustee or separate trustee;
(c) the Trustee at any time, by an instrument in writing executed
by it, with the concurrence of the Company, may accept the resignation of
or remove any co-trustee or separate trustee appointed under this Section,
and, if an Event of Default shall have occurred and be continuing, the
Trustee shall have power to accept the
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resignation of, or remove, any such co-trustee or separate trustee without
the concurrence of the Company. Upon the written request of the Trustee,
the Company shall join with the Trustee in the execution and delivery of
all instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate trustee
so resigned or removed may be appointed in the manner provided in this
Section;
(d) no co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Trustee, or any
other such trustee hereunder; and
(e) any Act of Holders delivered to the Trustee shall be deemed
to have been delivered to each such co-trustee and separate trustee.
SECTION 915. Appointment of Authenticating Agent
The Trustee may appoint an Authenticating Agent or Agents with
respect to the Securities of one or more series, which shall be authorized to
act on behalf of the Trustee to authenticate Securities of such series issued
upon original issuance and upon exchange, registration of transfer or partial
redemption thereof or pursuant to Section 306, 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, any State or territory 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 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.
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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. 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 Trustee agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, in accordance
with, and subject to the provisions of Section 907.
The provisions of Sections 308, 904 and 905 shall be applicable
to each Authenticating Agent.
If an appointment with respect to the Securities of one or more
series shall be 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 substantially in the
following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
------------------------
As Trustee
By
----------------------
As Authenticating
Agent
By
----------------------
Authorized Signatory
If all of the Securities of a series may not be originally issued
at one time, and if the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of Payment
where the Company wishes to have Securities of such series authenticated upon
original issuance, the Trustee, if so requested by the Company in writing (which
writing need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel), shall appoint, in accordance with this Section and in
accordance with such procedures as shall be acceptable to the Trustee, an
Authenticating Agent having an
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office in a Place of Payment designated by the Company with respect to such
series of Securities.
ARTICLE TEN
Holders' Lists and Reports by Trustee and Company
SECTION 1001. Lists of Holders.
Semiannually, not later than June 1 and December 1 in each year,
commencing June 1, 1996, and at such other times as the Trustee may request in
writing, the Company shall furnish or cause to be furnished to the Trustee
information as to the names and addresses of the Holders, and the Trustee shall
preserve such information and similar information received by it in any other
capacity and afford to the Holders access to information so preserved by it, all
to such extent, if any, and in such manner as shall be required by the Trust
Indenture Act; provided, however, that no such list need be furnished so long as
the Trustee shall be the Security Registrar.
SECTION 1002. Reports by Trustee and Company.
Not later than November 1 in each year, commencing November 1,
1996, the Trustee shall transmit to the Holders and the Commission a report,
dated as of the next preceding September 15, with respect to any events and
other matters described in Section 313(a) of the Trust Indenture Act, in such
manner and to the extent required by the Trust Indenture Act. The Trustee shall
transmit to the Holders and the Commission, and the Company shall file with the
Trustee (within 30 days after filing with the Commission in the case of reports
which pursuant to the Trust Indenture Act must be filed with the Commission and
furnished to the Trustee) and transmit to the Holders, such other information,
reports and other documents, if any, at such times and in such manner, as shall
be required by the Trust Indenture Act.
ARTICLE ELEVEN
Consolidation, Merger, Conveyance or Other Transfer
SECTION 1101. Company May Consolidate, etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation, or convey or otherwise transfer or lease its properties and assets
substantially as an entirety to any Person, unless
(a) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or
transfer, or which leases,
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the properties and assets of the Company substantially as an entirety
shall be a Person organized and validly existing under the laws of the
United States, any State thereof or the District of Columbia, and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of and premium, if any, and interest, if
any, on all Outstanding Securities and the performance of every covenant
of this Indenture on the part of the Company to be performed or observed;
(b) immediately after giving effect to such transaction no Event
of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have occurred and be continuing;
and
(c) the Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, or other transfer or lease and such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transactions have been
complied with.
SECTION 1102. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the
Company into any other corporation or any conveyance, or other transfer or lease
of the properties and assets of the Company substantially as an entirety in
accordance with Section 1101, the successor corporation formed by such
consolidation or into which the Company is merged or the Person to which such
conveyance, transfer or lease 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 Person had been named as the Company
herein, and thereafter, except in the case of a lease, the predecessor Person
shall be relieved of all obligations and covenants under this Indenture and the
Securities Outstanding hereunder.
ARTICLE TWELVE
Supplemental Indentures
SECTION 1201. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company 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:
(a) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities, all as provided in Article Eleven; or
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(b) to add one or more covenants of the Company or other
provisions for the benefit of all Holders or for the benefit of the
Holders of, or to remain in effect only so long as there shall be
Outstanding, Securities of one or more specified series, or to surrender
any right or power herein conferred upon the Company; or
(c) to add any additional Events of Default with respect to all
or any series of Securities Outstanding hereunder; or
(d) to change or eliminate any provision of this Indenture or to
add any new provision to this Indenture; provided, however, that if such
change, elimination or addition shall adversely affect the interests of
the Holders of Securities of any series Outstanding on the date of such
indenture supplemental hereto in any material respect, such change,
elimination or addition shall become effective with respect to such series
only pursuant to the provisions of Section 1202 hereof or when no Security
of such series remains Outstanding; or
(e) to provide collateral security for all but not part of the
Securities; or
(f) to establish the form or terms of Securities of any series as
contemplated by Sections 201 and 301; or
(g) to provide for the authentication and delivery of bearer
securities and coupons appertaining thereto representing interest, if any,
thereon and for the procedures for the registration, exchange and
replacement thereof and for the giving of notice to, and the solicitation
of the vote or consent of, the holders thereof, and for any and all other
matters incidental thereto; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a separate or 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 911(b); or
(i) to provide for the procedures required to permit the Company
to utilize, at its option, a noncertificated system of registration for
all, or any series of, the Securities; or
(j) to change any place or places where (1) the principal of and
premium, if any, and interest, if any, on all or any series of Securities
shall be payable, (2) all or any series of Securities may be surrendered
for registration of transfer, (3) all or any series of Securities may be
surrendered for exchange and (4) notices and demands to or upon the
Company in respect of all or any series of Securities and this Indenture
may be served; or
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(k) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other changes to the provisions hereof or to add
other provisions with respect to matters or questions arising under this
Indenture, provided that such other changes or additions shall not
adversely affect the interests of the Holders of Securities of any series
in any material respect.
Without limiting the generality of the foregoing, if the Trust
Indenture Act as in effect at the date of the execution and delivery of this
Indenture or at any time thereafter shall be amended and
(x) if any such amendment shall require one or more changes
to any provisions hereof or the inclusion herein of any
additional provisions, or shall by operation of law be deemed
to effect such changes or incorporate such provisions by
reference or otherwise, this Indenture shall be deemed to have
been amended so as to conform to such amendment to the Trust
Indenture Act, and the Company and the Trustee may, without
the consent of any Holders, enter into an indenture
supplemental hereto to effect or evidence such changes or
additional provisions; or
(y) if any such amendment shall permit one or more changes
to, or the elimination of, any provisions hereof which, at the
date of the execution and delivery hereof or at any time
thereafter, are required by the Trust Indenture Act to be
contained herein, this Indenture shall be deemed to have been
amended to effect such changes or elimination, and the Company
and the Trustee may, without the consent of any Holders, enter
into an indenture supplemental hereto to evidence such
amendment hereof.
SECTION 1202. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities of all series then Outstanding
under this Indenture, considered as one class, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may 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 modifying
in any manner the rights of the Holders of Securities of such series under the
Indenture; provided, however, that if there shall be Securities of more than one
series Outstanding hereunder and if a proposed supplemental indenture shall
directly affect the rights of the Holders of Securities of one or more, but less
than all, of such series, then the consent only of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of
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all series so directly affected, considered as one class, shall be required; and
provided, further, that no such supplemental indenture shall:
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on (except as provided in Section
311 hereof), any Security, or reduce the principal amount thereof or the
rate of interest thereon (or the amount of any installment of interest
thereon) or change the method of calculating such rate or reduce any
premium payable upon the redemption thereof, or change the coin or
currency (or other property), 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 of any
Security (or, in the case of redemption, on or after the Redemption Date),
without, in any such case, the consent of the Holder of such Security, or
(b) reduce the percentage in principal amount of the Outstanding
Securities of any series (or, if applicable, in liquidation preference of
any series of Preferred Securities), the consent of the Holders of which
is required for any such supplemental indenture, or the consent of the
Holders of which is required for any waiver of compliance with any
provision of this Indenture or of any default hereunder and its
consequences, or reduce the requirements of Section 1304 for quorum or
voting, without, in any such case, the consent of the Holders of each
Outstanding Security of such series, or
(c) modify any of the provisions of this Section, Section 607 or
Section 813 with respect to the Securities of any series, except to
increase the percentages in principal amount referred to in this Section
or such other Sections or to provide that 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 to "the Trustee" and concomitant
changes in this Section, or the deletion of this proviso, in accordance
with the requirements of Sections 911(b) and 1201(h).
Notwithstanding the foregoing, so long as any of the Preferred Securities remain
outstanding, the Trustee may not consent to a supplemental indenture under this
Section 1202 without the prior consent, obtained as provided in a Trust
Agreement pertaining to a Trust which issued such Preferred Securities, of the
holders of not less than a majority in aggregate liquidation preference of all
Preferred Securities issued by such Trust affected, considered as one class, or,
in the case of changes described in clauses (a), (b) and (c) above, 100% in
aggregate liquidation preference of all such Preferred Securities then
outstanding which would be affected thereby, considered as one class. A
supplemental indenture which changes or eliminates any covenant or other
provision 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
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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. A
waiver by a Holder of such Holder's right to consent under this Section shall be
deemed to be a consent of such Holder.
SECTION 1203. Execution of Supplemental Indentures.
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 901) shall be fully protected in relying upon, 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, immunities or liabilities under this Indenture or
otherwise.
SECTION 1204. 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. Any supplemental indenture permitted by this
Article may restate this Indenture in its entirety, and, upon the execution and
delivery thereof, any such restatement shall supersede this Indenture as
theretofore in effect for all purposes.
SECTION 1205. 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 1206. 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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SECTION 1207. Modification Without Supplemental Indenture
If the terms of any particular series of Securities shall have
been established in a Board Resolution or an Officer's Certificate as
contemplated by Section 301, and not in an indenture supplemental hereto,
additions to, changes in or the elimination of any of such terms may be effected
by means of a supplemental Board Resolution or Officer's Certificate, as the
case may be, delivered to, and accepted by, the Trustee; provided, however, that
such supplemental Board Resolution or Officer's Certificate shall not be
accepted by the Trustee or otherwise be effective unless all conditions set
forth in this Indenture which would be required to be satisfied if such
additions, changes or elimination were contained in a supplemental indenture
shall have been appropriately satisfied. Upon the acceptance thereof by the
Trustee, any such supplemental Board Resolution or Officer's Certificate shall
be deemed to be a "supplemental indenture" for purposes of Section 1204 and
1206.
ARTICLE THIRTEEN
Meetings of Holders; Action Without Meeting
SECTION 1301. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of one or more, or all, series
may be called at any time and from time to time pursuant to this Article to
make, give or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be made, given or
taken by Holders of Securities of such series.
SECTION 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of one or more, or all, series for any purpose specified in
Section 1301, to be held at such time and at such place in the Borough of
Manhattan, The City of New York, as the Trustee shall determine, or, with
the approval of the Company, at any other place. Notice of every such
meeting, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be
given, in the manner provided in Section 106, not less than 21 nor more
than 180 days prior to the date fixed for the meeting.
(b) If the Trustee shall have been requested to call a meeting of
the Holders of Securities of one or more, or all, series by the Company or
by the Holders of 33% in aggregate principal amount of all of such series,
considered as one class, for any purpose specified in Section 1301, by
written request setting forth in reasonable detail the action proposed to
be taken at the meeting, and the Trustee shall not have given the notice
of such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series in the amount
above specified,
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as the case may be, may determine the time and the place in the Borough of
Manhattan, The City of New York, or in such other place as shall be
determined or approved by the Company, for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
(c) Any meeting of Holders of Securities of one or more, or all,
series shall be valid without notice if the Holders of all Outstanding
Securities of such series are present in person or by proxy and if
representatives of the Company and the Trustee are present, or if notice
is waived in writing before or after the meeting by the Holders of all
Outstanding Securities of such series, or by such of them as are not
present at the meeting in person or by proxy, and by the Company and the
Trustee.
SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of
one or more, or all, series a Person shall be (a) a Holder of one or more
Outstanding Securities of such series, or (b) a Person appointed by an
instrument in writing as proxy for a Holder or Holders of one or more
Outstanding Securities of such series by such Holder or Holders. The only
Persons who shall be entitled to attend any meeting of Holders of Securities of
any series shall be the Persons entitled to vote at such meeting and their
counsel, any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of the series with respect to which a
meeting shall have been called as hereinbefore provided, considered as one
class, shall constitute a quorum for a meeting of Holders of Securities of such
series; provided, however, that if any action is to be taken at such meeting
which this Indenture expressly provides may be taken by the Holders of a
specified percentage, which is less than a majority, in principal amount of the
Outstanding Securities of such series, considered as one class, the Persons
entitled to vote such specified percentage in principal amount of the
Outstanding Securities of such series, considered as one class, shall constitute
a quorum. In the absence of a quorum within one hour of the time appointed for
any such meeting, the meeting shall, if convened at the request of Holders of
Securities of such series, be dissolved. In any other case the meeting may be
adjourned for such period as may be determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for such
period as may be determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Except as provided by Section 1305(e),
notice of the reconvening of any meeting adjourned for more than 30 days shall
be given as provided in Section 1302(a) not less than 10 days prior to the date
on which the meeting is scheduled to be reconvened. Notice of the reconvening of
an adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
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Except as limited by Section 1202, any resolution presented to a
meeting or adjourned meeting duly reconvened at which a quorum is present as
aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in aggregate principal amount of the Outstanding Securities of the
series with respect to which such meeting shall have been called, considered as
one class; provided, however, that, except as so limited, any resolution with
respect to any action which this Indenture expressly provides may be taken by
the Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of such series, considered as one
class, may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the Holders
of such specified percentage in principal amount of the Outstanding Securities
of such series, considered as one class.
Any resolution passed or decision taken at any meeting of Holders
of Securities duly held in accordance with this Section shall be binding on all
the Holders of Securities of the series with respect to which such meeting shall
have been held, whether or not present or represented at the meeting.
SECTION 1305. Attendance at Meetings; Determination of Voting Rights;
Conduct and Adjournment of Meetings.
(a) Attendance at meetings of Holders of Securities may be in
person or by proxy; and, to the extent permitted by law, any such proxy
shall remain in effect and be binding upon any future Holder of the
Securities with respect to which it was given unless and until
specifically revoked by the Holder or future Holder of such Securities
before being voted.
(b) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities in regard to proof of the holding of
such Securities and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to
vote, and such other matters concerning the conduct of the meeting as it
shall deem appropriate. Except as otherwise permitted or required by any
such regulations, the holding of Securities shall be proved in the manner
specified in Section 104 and the appointment of any proxy shall be proved
in the manner specified in Section 104. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof specified in Section 104 or
other proof.
(c) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders as provided in Section 1302(b), in
which case the Company or the Holders of Securities of the series calling
the meeting, as the case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent secretary of the meeting
shall be elected by vote of the Persons entitled to vote a
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majority in aggregate principal amount of the Outstanding Securities of
all series represented at the meeting, considered as one class.
(d) At any meeting each Holder or proxy shall be entitled to one
vote for each $1 principal amount of Securities held or represented by
him; provided, however, that no vote shall be cast or counted at any
meeting in respect of any Security challenged as not Outstanding and ruled
by the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote, except as a Holder of a Security or
proxy.
(e) Any meeting duly called pursuant to Section 1302 at which a
quorum is present may be adjourned from time to time by Persons entitled
to vote a majority in aggregate principal amount of the Outstanding
Securities of all series represented at the meeting, considered as one
class; and the meeting may be held as so adjourned without further notice.
SECTION 1306. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders
shall be by written ballots on which shall be subscribed the signatures of the
Holders or of their representatives by proxy and the principal amounts and
serial numbers of the Outstanding Securities, of the series with respect to
which the meeting shall have been called, held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports of all votes cast at the meeting. A record of the proceedings of each
meeting of Holders shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of votes
on any vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1302 and, if
applicable, Section 1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
SECTION 1307. Action Without Meeting.
In lieu of a vote of Holders at a meeting as hereinbefore
contemplated in this Article, any request, demand, authorization, direction,
notice, consent, waiver or other action may be made, given or taken by Holders
by written instruments as provided in Section 104.
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ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders, Officers and Directors
SECTION 1401. Liability Solely Corporate
No recourse shall be had for the payment of the principal of or
premium, if any, or interest, if any, on any Securities, or any part thereof, or
for any claim based thereon or otherwise in respect thereof, or of the
indebtedness represented thereby, or upon any obligation, covenant or agreement
under this Indenture, against any incorporator, stockholder, officer or
director, as such, past, present or future of the Company or of any predecessor
or successor corporation (either directly or through the Company or a
predecessor or successor corporation), whether by virtue of any constitutional
provision, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly agreed and understood that this
Indenture and all the Securities are solely corporate obligations, and that no
personal liability whatsoever shall attach to, or be incurred by, any
incorporator, stockholder, officer or director, past, present or future, of the
Company or of any predecessor or successor corporation, either directly or
indirectly through the Company or any predecessor or successor corporation,
because of the indebtedness hereby authorized or under or by reason of any of
the obligations, covenants or agreements contained in this Indenture or in any
of the Securities or to be implied herefrom or therefrom, and that any such
personal liability is hereby expressly waived and released as a condition of,
and as part of the consideration for, the execution of this Indenture and the
issuance of the Securities.
ARTICLE FIFTEEN
Subordination of Securities
SECTION 1501. Securities Subordinate to Senior Indebtedness.
The Company, for itself, its successors and assigns, covenants
and agrees, and each Holder of the Securities of each series, by its acceptance
thereof, likewise covenants and agrees, that the payment of the principal of and
premium, if any, and interest, if any, on each and all of the Securities is
hereby expressly subordinated and subject to the extent and in the manner set
forth in this Article, in right of payment to the prior payment in full of all
Senior Indebtedness.
Each Holder of the Securities of each series, by its acceptance
thereof, authorizes and directs the Trustee on its behalf to take such action as
may be necessary or appropriate to effectuate the subordination as provided in
this Article, and appoints the Trustee its attorney-in-fact for any and all such
purposes.
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SECTION 1502. Payment Over of Proceeds of Securities
In the event (a) of any insolvency or bankruptcy proceedings or
any receivership, liquidation, reorganization or other similar proceedings in
respect of the Company or a substantial part of its property, or of any
proceedings for liquidation, dissolution or other winding up of the Company,
whether or not involving insolvency or bankruptcy, or (b) subject to the
provisions of Section 1503, that (i) a default shall have occurred with respect
to the payment of principal of or interest on or other monetary amounts due and
payable on any Senior Indebtedness, or (ii) there shall have occurred a default
(other than a default in the payment of principal or interest or other monetary
amounts due and payable) in respect of any Senior Indebtedness, as defined
therein or in the instrument under which the same is outstanding, permitting the
holder or holders thereof to accelerate the maturity thereof (with notice or
lapse of time, or both), and such default shall have continued beyond the period
of grace, if any, in respect thereof, and, in the cases of subclauses (i) and
(ii) of this clause (b), such default shall not have been cured or waived or
shall not have ceased to exist, or (c) that the principal of and accrued
interest on the Securities of any series shall have been declared due and
payable pursuant to Section 801 and such declaration shall not have been
rescinded and annulled as provided in Section 802, then:
(1) the holders of all Senior Indebtedness shall first be
entitled to receive payment of the full amount due thereon, or
provision shall be made for such payment in money or money's
worth, before the Holders of any of the Securities are
entitled to receive a payment on account of the principal of
or interest on the indebtedness evidenced by the Securities,
including, without limitation, any payments made pursuant to
Articles Four and Five;
(2) any payment by, or distribution of assets of, the
Company of any kind or character, whether in cash, property or
securities, to which any Holder or the Trustee would be
entitled except for the provisions of this Article, shall be
paid or delivered by the person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of
such Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such
Senior Indebtedness may have been issued, ratably according to
the aggregate amounts remaining unpaid on account of such
Senior Indebtedness held or represented by each, to the extent
necessary to make payment in full of all Senior Indebtedness
remaining unpaid after giving effect to any concurrent payment
or distribution (or provision therefor) to the holders of such
Senior Indebtedness, before any payment or distribution is
made to the Holders of the indebtedness evidenced by the
Securities or to the Trustee under this Indenture; and
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(3) in the event that, notwithstanding the foregoing, any
payment by, or distribution of assets of, the Company of any
kind or character, whether in cash, property or securities, in
respect of principal of or interest on the Securities or in
connection with any repurchase by the Company of the
Securities, shall be received by the Trustee or any Holder
before all Senior Indebtedness is paid in full, or provision
is made for such payment in money or money's worth, such
payment or distribution in respect of principal of or interest
on the Securities or in connection with any repurchase by the
Company of the Securities shall be paid over to the holders of
such Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any such
Senior Indebtedness may have been issued, ratably as
aforesaid, for application to the payment of all Senior
Indebtedness remaining unpaid until all such Senior
Indebtedness shall have been paid in full, after giving effect
to any concurrent payment or distribution (or provision
therefor) to the holders of such Senior Indebtedness.
Notwithstanding the foregoing, at any time after the 123rd day
following the date of deposit of cash or Government Obligations pursuant to
Section 701 (provided all conditions set out in such Section shall have been
satisfied), the funds so deposited and any interest thereon will not be subject
to any rights of holders of Senior Indebtedness including, without limitation,
those arising under this Article Fifteen; provided that no event described in
clauses (d) and (e) of Section 801 with respect to the Company has occurred
during such 123-day period.
For purposes of this Article only, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan or reorganization or readjustment which are subordinate
in right of payment to all Senior Indebtedness which may at the time be
outstanding to the same extent as, or to a greater extent than, the Securities
are so subordinated as provided in this Article. The consolidation of the
Company with, or the merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the conveyance or transfer
of its property as an entirety, or substantially as an entirety, to another
corporation upon the terms and conditions provided for in Article Eleven hereof
shall not be deemed a dissolution, winding-up, liquidation or reorganization for
the purposes of this Section 1502 if such other corporation shall, as a part of
such consolidation, merger, conveyance or transfer, comply with the conditions
stated in Article Eleven hereof. Nothing in Section 1501 or in this Section 1502
shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 907.
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SECTION 1503. Disputes with Holders of Certain Senior Indebtedness.
Any failure by the Company to make any payment on or perform any
other obligation in respect of Senior Indebtedness, other than any indebtedness
incurred by the Company or assumed or guaranteed, directly or indirectly, by the
Company for money borrowed (or any deferral, renewal, extension or refunding
thereof) or any other obligation as to which the provisions of this Section
shall have been waived by the Company in the instrument or instruments by which
the Company incurred, assumed, guaranteed or otherwise created such indebtedness
or obligation, shall not be deemed a default under clause (b) of Section 1502 if
(i) the Company shall be disputing its obligation to make such payment or
perform such obligation and (ii) either (A) no final judgment relating to such
dispute shall have been issued against the Company which is in full force and
effect and is not subject to further review, including a judgment that has
become final by reason of the expiration of the time within which a party may
seek further appeal or review, or (B) in the event that a judgment that is
subject to further review or appeal has been issued, the Company shall in good
faith be prosecuting an appeal or other proceeding for review and a stay or
execution shall have been obtained pending such appeal or review.
SECTION 1504. Subrogation.
Senior Indebtedness shall not be deemed to have been paid in full
unless the holders thereof shall have received cash (or securities or other
property satisfactory to such holders) in full payment of such Senior
Indebtedness then outstanding. Subject to the prior payment in full of all
Senior Indebtedness, the rights of the Holders of the Securities shall be
subrogated to the rights of the holders of Senior Indebtedness to receive any
further payments or distributions of cash, property or securities of the Company
applicable to the holders of the Senior Indebtedness until all amounts owing on
the Securities shall be paid in full; and such payments or distributions of
cash, property or securities received by the Holders of the Securities, by
reason of such subrogation, which otherwise would be paid or distributed to the
holders of such Senior Indebtedness shall, as between the Company, its creditors
other than the holders of Senior Indebtedness, and the Holders, be deemed to be
a payment by the Company to or on account of Senior Indebtedness, it being
understood that the provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the Holders, on the one hand, and
the holders of the Senior Indebtedness, on the other hand.
SECTION 1505. Obligation of the Company Unconditional.
Nothing contained in this Article or elsewhere in this Indenture
or in the Securities is intended to or shall impair, as among the Company, its
creditors other than the holders of Senior Indebtedness and the Holders, the
obligation of the Company, which is absolute and unconditional, to pay to the
Holders the principal of and interest on the Securities as and when the same
shall become due and payable in accordance with their terms, or is intended to
or shall affect the relative rights of the Holders and creditors of the Company
other than the holders of Senior Indebtedness, nor shall anything herein or
therein prevent the Trustee or any Holder from exercising all remedies otherwise
permitted by applicable law
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upon default under this Indenture, subject to the rights, if any, under this
Article of the holders of Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of any such remedy.
Upon any payment or distribution of assets or securities of the
Company referred to in this Article, the Trustee and the Holders shall be
entitled to rely upon any order or decree of a court of competent jurisdiction
in which such dissolution, winding up, liquidation or reorganization proceedings
are pending for the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of the Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon, and all other facts pertinent thereto or
to this Article.
SECTION 1506. Priority of Senior Indebtedness Upon Maturity.
Upon the maturity of the principal of any Senior Indebtedness by
lapse of time, acceleration or otherwise, all matured principal of Senior
Indebtedness and interest and premium, if any, thereon shall first be paid in
full before any payment of principal or premium, if any, or interest, if any, is
made upon the Securities or before any Securities can be acquired by the Company
or any sinking fund payment is made with respect to the Securities (except that
required sinking fund payments may be reduced by Securities acquired before such
maturity of such Senior Indebtedness).
SECTION 1507. Trustee as Holder of Senior Indebtedness.
The Trustee shall be entitled to all rights set forth in this
Article with respect to any Senior Indebtedness at any time held by it, to the
same extent as any other holder of Senior Indebtedness. Nothing in this Article
shall deprive the Trustee of any of its rights as such holder.
SECTION 1508. Notice to Trustee to Effectuate Subordination.
Notwithstanding the provisions of this Article or any other
provision of the Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment of
moneys to or by the Trustee unless and until the Trustee shall have received
written notice thereof from the Company, from a Holder or from a holder of any
Senior Indebtedness or from any representative or representatives of such holder
and, prior to the receipt of any such written notice, the Trustee shall be
entitled, subject to Section 901, in all respects to assume that no such facts
exist; provided, however, that, if prior to the fifth Business Day preceding the
date upon which by the terms hereof any such moneys may become payable for any
purpose, or in the event of the execution of an instrument pursuant to Section
702 acknowledging satisfaction and discharge of this Indenture, then if prior to
the second Business Day preceding the date of such execution, the Trustee shall
not have received with respect to such moneys the notice provided for in this
Section, then, anything herein contained to the contrary notwithstanding, the
Trustee may, in its discretion, receive such moneys and/or apply the same to the
purpose for which they were
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received, and shall not be affected by any notice to the contrary, which may be
received by it on or after such date; provided, however, that no such
application shall affect the obligations under this Article of the persons
receiving such moneys from the Trustee.
SECTION 1509. Modification, Extension, etc. of Senior Indebtedness
The holders of Senior Indebtedness may, without affecting in any
manner the subordination of the payment of the principal of and premium, if any,
and interest, if any, on the Securities, at any time or from time to time and in
their absolute discretion, agree with the Company to change the manner, place or
terms of payment, change or extend the time of payment of, or renew or alter,
any Senior Indebtedness, or amend or supplement any instrument pursuant to which
any Senior Indebtedness is issued, or exercise or refrain from exercising any
other of their rights under the Senior Indebtedness including, without
limitation, the waiver of default thereunder, all without notice to or assent
from the Holders or the Trustee.
SECTION 1510. Trustee Has No Fiduciary Duty to Holders of Senior
Indebtedness.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and objectives as
are specifically set forth in this Indenture, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness, and shall not be
liable to any such holders if it shall mistakenly pay over or deliver to the
Holders or the Company or any other Person, money or assets to which any holders
of Senior Indebtedness shall be entitled by virtue of this Article or otherwise.
SECTION 1511. Paying Agents Other Than the Trustee.
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context shall
otherwise require) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article in addition to or in place of the Trustee; provided,
however, that Sections 1507, 1508 and 1510 shall not apply to the Company if it
acts as Paying Agent.
SECTION 1512. Rights of Holders of Senior Indebtedness Not Impaired.
No right of any present or future holder of Senior Indebtedness
to enforce the subordination herein shall at any time or in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any noncompliance by the Company with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof any such holder may have
or be otherwise charged with.
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SECTION 1513. Effect of Subordination Provisions; Termination
Notwithstanding anything contained herein to the contrary, other
than as provided in the immediately succeeding sentence, all the provisions of
this Indenture shall be subject to the provisions of this Article, so far as the
same may be applicable thereto.
Notwithstanding anything contained herein to the contrary, the
provisions of this Article Fifteen shall be of no further effect, and the
Securities shall no longer be subordinated in right of payment to the prior
payment of Senior Indebtedness, if the Company shall have delivered to the
Trustee a notice to such effect. Any such notice delivered by the Company shall
not be deemed to be a supplemental indenture for purposes of Article Twelve.
-------------------------
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.
-74-
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, all as of the day and year first above written.
MINNESOTA POWER & LIGHT COMPANY
By: James Vizanko
-------------------------------
James K. Vizanko
Treasurer
-75-
THE BANK OF NEW YORK, Trustee
By: Helen M. Cotiaux
-------------------------------
-76-
STATE OF MINNESOTA )
) ss.:
COUNTY OF ST. LOUIS )
On the 20th day of March, 1996, before me personally came
James K. Vizanko, to me known, who, being by me duly sworn, did depose and say
that he is the Treasurer of Minnesota Power & Light Company, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
Kristie J. Lindstrom
----------------------------------
Kristie Lindstrom
Notary Public, State of Minnesota
St. Louis County
My. Comm. Expires [ ] 31, 2000
-77-
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 19th day of March, 1996, before me personally came
Helen Cotiaux, to me known, who, being by me duly sworn, did depose and say that
he is a Vice President of The Bank of New York, one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
Susan Fields
----------------------------------
Notary Public, State of New York
No. 31-4980055
Qualified in New York County
Commission Expires April 8, 1997
Exhibit 4(d)
GUARANTEE AGREEMENT
Between
Minnesota Power & Light Company
(as Guarantor)
and
The Bank of New York
(as Trustee)
dated as of
March 1, 1996
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.......................................... 1
SECTION 1.01 Definitions.......................................... 1
ARTICLE II TRUST INDENTURE ACT.................................. 4
SECTION 2.01 Trust Indenture Act; Application..................... 4
SECTION 2.02 Lists of Holders of Preferred Securities............. 4
SECTION 2.03 Reports by the Guarantee Trustee..................... 4
SECTION 2.04 Periodic Reports to Guarantee Trustee................ 4
SECTION 2.05 Evidence of Compliance with Conditions Precedent..... 5
SECTION 2.06 Events of Default; Waiver............................ 5
SECTION 2.07 Event of Default; Notice............................. 5
SECTION 2.08 Conflicting Interests................................ 5
ARTICLE III POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE....... 5
SECTION 3.01 Powers and Duties of the Guarantee Trustee........... 5
SECTION 3.02 Certain Rights of Guarantee Trustee.................. 7
ARTICLE IV GUARANTEE TRUSTEE.................................... 9
SECTION 4.01 Guarantee Trustee; Eligibility....................... 9
SECTION 4.02 Compensation and Reimbursement....................... 9
SECTION 4.03 Appointment, Removal and Resignation of
Guarantee Trustee........................ 10
ARTICLE V GUARANTEE............................................ 11
SECTION 5.01 Guarantee............................................ 11
SECTION 5.02 Waiver of Notice and Demand.......................... 11
SECTION 5.03 Obligations Not Affected............................. 12
SECTION 5.04 Rights of Holders.................................... 12
SECTION 5.05 Guarantee of Payment................................. 13
SECTION 5.06 Subrogation.......................................... 13
SECTION 5.07 Independent Obligations.............................. 13
ARTICLE VI SUBORDINATION........................................ 13
SECTION 6.01 Subordination........................................ 13
ARTICLE VII TERMINATION.......................................... 14
SECTION 7.01 Termination.......................................... 14
ARTICLE VIII MISCELLANEOUS........................................ 14
SECTION 8.01 Successors and Assigns............................... 14
SECTION 8.02 Amendments........................................... 14
SECTION 8.03 Notices.............................................. 14
SECTION 8.04 Benefit.............................................. 15
SECTION 8.05 Interpretation....................................... 16
SECTION 8.06 Governing Law........................................ 16
CROSS-REFERENCE TABLE
Section of Section of
Trust Indenture Act Guarantee
of 1939, as amended Agreement
- ------------------- ----------
310(a)....................................................... 4.01(a)
310(b)....................................................... 4.01(c), 2.08
310(c)....................................................... Inapplicable
311(a)....................................................... 2.02(b)
311(b)....................................................... 2.02(b)
311(c)....................................................... Inapplicable
312(a)....................................................... 2.02(a)
312(b)....................................................... 2.02(b)
313.......................................................... 2.03
314(a)....................................................... 2.04
314(b)....................................................... Inapplicable
314(c)....................................................... 2.05
314(d)....................................................... Inapplicable
314(e)....................................................... 1.01, 2.05, 3.02
314(f)....................................................... 2.01, 3.02
315(a)....................................................... 3.01(d)
315(b)....................................................... 2.07
315(c)....................................................... 3.01
315(d)....................................................... 3.01(d)
316(a)....................................................... 5.04(a), 2.06
316(b)....................................................... 5.03
316(c)....................................................... 2.02
317(a)....................................................... Inapplicable
317(b)....................................................... Inapplicable
318(a)....................................................... 2.01(b)
318(b)....................................................... 2.01
318(c)....................................................... 2.01(a)
- -------------
* This Cross-Reference Table does not constitute part of the Guarantee
Agreement and shall not affect the interpretation of any of its terms
or provisions.
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT ("Guarantee Agreement"), dated as of
March 1, 1996, is executed and delivered by Minnesota Power & Light Company, a
Minnesota corporation (the "Guarantor"), and The Bank of New York, as trustee
(the "Guarantee Trustee"), for the benefit of the Holders (as defined herein)
from time to time of the Preferred Securities (as defined herein) of MP&L
Capital I, a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement
(the "Trust Agreement"), dated as of March 1, 1996 between the Trustees of the
Issuer named therein, Minnesota Power & Light Company, as Depositor, and the
several Holders (as defined therein) the Issuer is issuing as of the date hereof
$75,000,000 aggregate liquidation amount of its 8.05% Cumulative Quarterly
Income Preferred Securities (the "Preferred Securities") representing preferred
undivided beneficial ownership interests in the Issuer and having the terms set
forth in the Trust Agreement;
WHEREAS, the Preferred Securities are to be issued for sale by
the Issuer and the proceeds are to be invested in $77,500,000 principal amount
of Debentures (as defined in the Trust Agreement); and
WHEREAS, in order to enhance the value of the Preferred
Securities, the Guarantor desires to irrevocably and unconditionally agree, to
the extent set forth herein, to pay to the Holders the Guarantee Payments (as
defined herein) and to make certain other payments on the terms and conditions
set forth herein;
NOW, THEREFORE, in consideration of the purchase of
Debentures, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee Agreement for the
benefit of the Holders from time to time.
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. As used in this Guarantee Agreement,
the terms set forth below shall, unless the context otherwise requires, have the
following meanings. Capitalized or otherwise defined terms used but not
otherwise defined herein shall have the meanings assigned to such terms in the
Trust Agreement as in effect on the date hereof.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. 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.
"Common Securities" means the securities representing common
undivided beneficial ownership interests in the assets of the Issuer.
"Event of Default" means a default by the Guarantor on any of
its payment obligations under this Guarantee Agreement.
"Guarantee Payments" shall mean the following payments or
distributions, without duplication, with respect to the Preferred Securities, to
the extent not paid or made by or on behalf of the Issuer: (i) any accrued and
unpaid Distributions that are required to be paid on such Preferred Securities
but only if and to the extent that the Property Trustee has available in the
Payment Account funds sufficient to make such payment, (ii) the redemption price
(the "Redemption Price"), and all accrued and unpaid Distributions to the date
of redemption, with respect to the Preferred Securities called for redemption by
the Issuer but only if and to the extent that the Property Trustee has available
in the Payment Account funds sufficient to make such payment, (iii) upon a
voluntary or involuntary dissolution, winding-up or termination of the Issuer
(other than in connection with a redemption of all of the Preferred Securities),
the lesser of (a) the aggregate of the Liquidation Amount and all accrued and
unpaid Distributions on the Preferred Securities to the date of payment, and (b)
the amount of assets of the Issuer remaining available for distribution to
Holders in liquidation of the Issuer (in either case, the "Liquidation
Distribution").
"Guarantee Trustee" means The Bank of New York until a
Successor Guarantee Trustee has been appointed and has accepted such appointment
pursuant to the terms of this Guarantee Agreement and thereafter means each such
Successor Guarantee Trustee.
"Holder" shall mean any holder, as registered on the books and
records of the Issuer, of any Preferred Securities then outstanding; provided,
however, that in determining whether the holders of the requisite percentage of
Preferred Securities have given any request, notice, consent or waiver
hereunder, "Holder" shall not include the Guarantor or any Affiliate of the
Guarantor.
"Indenture" means the Indenture dated as of March 1, 1996,
among the Guarantor (the "Debenture Issuer") and The Bank of New York, as
trustee, pursuant to which the Debentures are issued.
"Majority in liquidation amount of the Preferred Securities"
means a vote by Holders, voting separately as a class, of more than 50% of the
aggregate liquidation amount of all Preferred Securities.
-2-
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman of the Board, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Guarantor, and delivered to the Guarantee Trustee.
Any Officers' Certificate delivered with respect to compliance with a condition
or covenant provided for in this Guarantee Agreement shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Responsible Officer" means, with respect to the Guarantee
Trustee, any vice-president, any assistant vice-president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, any trust officer
or assistant trust officer or any other officer of the Corporate Trust
Department of the Guarantee Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of that officer's knowledge of and familiarity with
the particular subject.
"Successor Guarantee Trustee" means a successor Guarantee
Trustee possessing the qualifications to act as Guarantee Trustee under Section
4.01.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
-3-
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01 Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of
the Trust Indenture Act that are required or deemed to be part of this Guarantee
Agreement and shall, to the extent applicable, be governed by such provisions;
and
(b) if and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties imposed by Sections 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
SECTION 2.02 Lists of Holders of Preferred Securities.
(a) The Guarantor shall furnish or cause to be furnished to
the Guarantee Trustee (a) semiannually, not later than December 31 and June 30
in each year, a list, in such form as the Guarantee Trustee may reasonably
require, of the names and addresses of the Holders ("List of Holders") as of a
date not more than 15 days prior to the delivery thereof, and (b) at such other
times as the Guarantee Trustee may request in writing, within 30 days after the
receipt by the Guarantor of any such request, a List of Holders as of a date not
more than 15 days prior to the time such list is furnished; provided that, the
Guarantor shall not be obligated to provide such List of Holders at any time the
List of Holders does not differ from the most recent List of Holders given to
the Guarantee Trustee by the Guarantor. The Guarantee Trustee may destroy any
List of Holders previously given to it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations
under Section 311(a) of the Trust Indenture Act, subject to the provisions of
Section 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.03 Reports by the Guarantee Trustee. Within 60 days
after December 31 of each year, commencing December 31, 1996, the Guarantee
Trustee shall provide to the Holders such reports, if any, as are required by
Section 313(a) of the Trust Indenture Act in the form and in the manner provided
by Section 313(a) of the Trust Indenture Act. The Guarantee Trustee shall also
comply with the requirements of Sections 313(b), (c) and (d) of the Trust
Indenture Act.
SECTION 2.04 Periodic Reports to Guarantee Trustee. The
Guarantor shall provide to the Guarantee Trustee such documents, reports and
information as required by Section 314 (if any) and the compliance certificate
required by Section 314 of the Trust Indenture Act in the form, in the manner
and at the times required by Section 314 of the Trust Indenture Act.
-4-
SECTION 2.05 Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence of compliance
with any conditions precedent provided for in this Guarantee Agreement as and to
the extent required by Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) of the Trust Indenture Act may be given in the form of an Officers'
Certificate.
SECTION 2.06 Events of Default; Waiver. The Holders of a
Majority in liquidation amount of Preferred Securities may, by vote, on behalf
of all of the Holders, waive any past Event of Default and its consequences.
Upon such waiver, any such Event of Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Guarantee Agreement, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 2.07 Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders, notices of all Events of Default known to the Guarantee
Trustee, unless such defaults have been cured before the giving of such notice,
provided that, the Guarantee Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee, or a
trust committee of directors or Responsible Officers of the Guarantee Trustee in
good faith determines that the withholding of such notice is in the interests of
the Holders.
(b) The Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Guarantee Trustee shall have
received written notice, or a Responsible Officer charged with the
administration of the Trust Agreement shall have obtained written notice, of
such Event of Default.
SECTION 2.08 Conflicting Interests. The Trust Agreement and
the Indenture shall be deemed to be specifically described in this Guarantee
Agreement for the purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
SECTION 3.01 Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Guarantee
Trustee for the benefit of the Holders, and the Guarantee Trustee shall not
transfer this Guarantee
-5-
Agreement or any rights hereunder to any Person except a Holder exercising his
or her rights pursuant to Section 5.04 or to a Successor Guarantee Trustee on
acceptance by such Successor Guarantee Trustee of its appointment to act as
Successor Guarantee Trustee. The right, title and interest of the Guarantee
Trustee shall automatically vest in any Successor Guarantee Trustee, and such
vesting and cessation of title shall be effective whether or not conveyancing
documents have been executed and delivered pursuant to the appointment of such
Successor Guarantee Trustee.
(b) The Guarantee Trustee, prior to the occurrence of any
Event of Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Guarantee Agreement, and no implied covenants or obligations shall
be read into this Guarantee Agreement against the Guarantee Trustee. In case an
Event of Default has occurred (that has not been cured or waived pursuant to
Section 2.06), the Guarantee Trustee shall exercise such of the rights and
powers vested in it by this Guarantee Agreement, and use the same degree of care
and skill in its exercise thereof, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs.
(c) No provision of this Guarantee Agreement shall be
construed to relieve the Guarantee Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(i) prior to the occurrence of any Event of Default
and after the curing or waiving of all such Events of Default
that may have occurred:
(A) the duties and obligations of the
Guarantee Trustee shall be determined solely by the
express provisions of this Guarantee Agreement, and
the Guarantee Trustee shall not be liable except for
the performance of such duties and obligations as are
specifically set forth in this Guarantee Agreement;
and
(B) in the absence of bad faith on the part
of the Guarantee Trustee, the Guarantee Trustee may
conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished
to the Guarantee Trustee and conforming to the
requirements of this Guarantee Agreement; but in the
case of any such certificates or opinions that by any
provision hereof are specifically required to be
furnished to the Guarantee Trustee, the Guarantee
Trustee shall be under a duty to examine the same to
determine whether or not they conform to the
requirements of this Guarantee Agreement;
(ii) the Guarantee Trustee shall not be liable for
any error of judgment made in good faith by a Responsible
Officer of the Guarantee Trustee, unless
-6-
it shall be proved that the Guarantee Trustee or such
Responsible Officer was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) the Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in
good faith in accordance with the direction of the Holders of
a Majority in liquidation amount of the Preferred Securities
relating to the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee,
or exercising any trust or power conferred upon the Guarantee
Trustee under this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall
require the Guarantee Trustee to expend or risk its own funds
or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of
its rights or powers, if the Guarantee Trustee shall have
reasonable grounds for believing that the repayment of such
funds or liability is not reasonably assured to it under the
terms of this Guarantee Agreement or adequate indemnity
against such risk or liability is not reasonably assured to
it.
SECTION 3.02 Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.01:
(i) the Guarantee Trustee may rely and shall be fully
protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper
or document reasonably believed by it to be genuine and to
have been signed, sent or presented by the proper party or
parties;
(ii) any direction or act of the Guarantor
contemplated by this Guarantee Agreement shall be sufficiently
evidenced by an Officers' Certificate;
(iii) whenever, in the administration of this
Guarantee Agreement, the Guarantee Trustee shall deem it
desirable that a matter be proved or established before
taking, suffering or omitting any action hereunder, the
Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on
its part, request and rely upon an Officers' Certificate
which, upon receipt of such request, shall be promptly
delivered by the Guarantor;
-7-
(iv) the Guarantee Trustee may consult with counsel
of its choice, and the written advice or opinion of such
counsel with respect to legal matters shall be full and
complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and
in accordance with such advice or opinion; such counsel may be
counsel to the Guarantor or any of its Affiliates and may
include any of its employees; the Guarantee Trustee shall have
the right at any time to seek instructions concerning the
administration of this Guarantee Agreement from any court of
competent jurisdiction;
(v) the Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in
it by this Guarantee Agreement at the request or direction of
any Holder, unless such Holder shall have provided to the
Guarantee Trustee such adequate security and indemnity as
would satisfy a reasonable person in the position of the
Guarantee Trustee, against the costs, expenses (including
attorneys' fees and expenses) and liabilities that might be
incurred by it in complying with such request or direction,
including such reasonable advances as may be requested by the
Guarantee Trustee; provided that, nothing contained in this
Section 3.02(a)(v) shall be taken to relieve the Guarantee
Trustee, upon the occurrence of an Event of Default, of its
obligation to exercise the rights and powers vested in it by
this Guarantee Agreement;
(vi) the Guarantee Trustee shall not be bound to make
any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper
or document reasonably believed by it to be genuine, but the
Guarantee Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may
see fit;
(vii) the Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents or attorneys, and the
Guarantee Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed
with due care by it hereunder;
(viii) whenever in the administration of this
Guarantee Agreement the Guarantee Trustee shall deem it
desirable to receive instructions with respect to enforcing
any remedy or right or taking any other action hereunder, the
Guarantee Trustee (1) may request instructions from the
Holders, (2) may refrain from enforcing such remedy or right
or taking such other action until such instructions are
received, and (3) shall be protected in acting in accordance
with such instructions; and
-8-
(ix) the Guarantee Trustee shall not be liable for
any action taken, suffered or omitted to be taken by it in
good faith and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by
this Guarantee.
(b) No provision of this Guarantee Agreement shall be deemed
to impose any duty or obligation on the Guarantee Trustee to perform any act or
acts or exercise any right, power, duty or obligation conferred or imposed on it
in any jurisdiction in which it shall be illegal, or in which the Guarantee
Trustee shall be unqualified or incompetent in accordance with applicable law,
to perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee Trustee
shall be construed to be a duty.
ARTICLE IV
GUARANTEE TRUSTEE
4.01 Guarantee Trustee; Eligibility.
(a) There shall at all times be a Guarantee Trustee which
shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business
under the laws of the United States of America or any State or
Territory thereof or of the District of Columbia, or a
corporation or Person permitted by the Securities and Exchange
Commission to act as an institutional trustee under the Trust
Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus
of at least 50 million U.S. dollars ($50,000,000), and subject
to supervision or examination by Federal, State, Territorial
or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to
law or to the requirements of the supervising or examining
authority referred to above, then, for the purposes of this
Section 4.01(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Guarantee Trustee shall cease to be
eligible to so act under Section 4.01(a), the Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.03(c).
(c) If the Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Guarantee Trustee and
-9-
Guarantor shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act.
SECTION 4.02 Compensation and Reimbursement.
The Guarantor agrees:
(a) to pay the Guarantee Trustee from time to time such
reasonable compensation as the Guarantor and the Guarantee Trustee shall from
time to time agree in writing 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);
(b) except as otherwise expressly provided herein, to
reimburse the Guarantee Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Guarantee Trustee in
accordance with the provisions of this Guarantee (including the reasonable
compensation and expenses of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
and
(c) to indemnify each of the Guarantee Trustee and any
predecessor Guarantee Trustee for, and to hold it harmless from and against, any
and all loss, damage, claim, liability or expense, including taxes (other than
taxes based upon the income of the Guarantee Trustee) incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance of the administration of this Guarantee Agreement, including the
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any its powers or duties
hereunder.
As security for the performance of the obligations of the
Guarantor under this Section, the Guarantee Trustee shall have a lien prior to
the Preferred Securities upon all the property and funds held or collected by
the Guarantee Trustee as such, except funds held in trust for the payment of
principal of, and premium (if any) or interest on, particular obligations of the
Guarantor under this Guarantee Agreement.
The provisions of this Section shall survive the termination
of this Guarantee Agreement.
SECTION 4.03 Appointment, Removal and Resignation of Guarantee
Trustee.
(a) Subject to Section 4.03(b), unless an Event of Default
shall have occurred and be continuing, the Guarantee Trustee may be appointed or
removed without cause at any time by the Guarantor.
-10-
(b) The Guarantee Trustee shall not be removed until a
Successor Guarantee Trustee has been appointed and has accepted such appointment
by written instrument executed by such Successor Guarantee Trustee and delivered
to the Guarantor.
(c) The Guarantee Trustee appointed to office shall hold
office until a Successor Guarantee Trustee shall have been appointed or until
its removal or resignation. The Guarantee Trustee may resign from office
(without need for prior or subsequent accounting) by an instrument in writing
executed by the Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Guarantee Trustee has been
appointed and has accepted such appointment by instrument in writing executed by
such Successor Guarantee Trustee and delivered to the Guarantor and the
resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.03 within 60
days after delivery to the Guarantor of an instrument of resignation, the
resigning Guarantee Trustee may petition any court of competent jurisdiction for
appointment of a Successor Guarantee Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a Successor
Guarantee Trustee.
(e) The Guarantor shall give notice of each resignation and
each removal of the Guarantee Trustee and each appointment of a successor
Guarantee Trustee to all Holders in the manner provided in Section 8.03 hereof.
Each notice shall include the name of the successor Guarantee Trustee and the
address of its Corporate Trust Office.
ARTICLE V
GUARANTEE
SECTION 5.01 Guarantee. The Guarantor irrevocably and
unconditionally agrees to pay in full to the Holders the Guarantee Payments
(without duplication of amounts theretofore paid by the Issuer), as and when
due, regardless of any defense, right of set-off or counterclaim which the
Issuer may have or assert. The Guarantor's obligation to make a Guarantee
Payment may be satisfied by direct payment of the required amounts by the
Guarantor to the Holders or by causing the Issuer to pay such amounts to the
Holders.
SECTION 5.02 Waiver of Notice and Demand. The Guarantor hereby
waives notice of acceptance of this Guarantee Agreement and of any liability to
which it applies or may apply, presentment, demand for payment, any right to
require a proceeding first against the Issuer or any other Person before
proceeding against the Guarantor, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
-11-
SECTION 5.03 Obligations Not Affected. The obligation of the
Guarantor to make the Guarantee Payments under this Guarantee Agreement shall in
no way be affected or impaired by reason of the happening from time to time of
any of the following:
(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Issuer of any express or
implied agreement, covenant, term or condition relating to the
Preferred Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all
or any portion of the Distributions, Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Preferred
Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Preferred
Securities (other than an extension of time for payment of
Distributions, Redemption Price, Liquidation Distribution or other sum
payable that results from the extension of any interest payment period
on the Debentures permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to the
terms of the Preferred Securities, or any action on the part of the
Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings
affecting, the Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the
Preferred Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it
being the intent of this Section 5.03 that the obligations of the
Guarantor hereunder shall be absolute and unconditional under any and
all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain consent
of, the Guarantor with respect to the happening of any of the foregoing.
SECTION 5.04 Rights of Holders. The Guarantor expressly
acknowledges that: (i) this Guarantee Agreement will be deposited with the
Guarantee Trustee to be held for the benefit of the Holders; (ii) the Guarantee
Trustee has the right to enforce this
-12-
Guarantee Agreement on behalf of the Holders; (iii) the Holders of a Majority in
liquidation amount of the Preferred Securities have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Guarantee Trustee in respect of this Guarantee Agreement or exercising any
trust or power conferred upon the Guarantee Trustee under this Guarantee
Agreement; and (iv) any Holder may institute a legal proceeding directly against
the Guarantor to enforce its rights under this Guarantee Agreement without first
instituting a legal proceeding against the Issuer or any other person or entity.
SECTION 5.05 Guarantee of Payment. This Guarantee Agreement
creates a guarantee of payment and not of collection. This Guarantee Agreement
will not be discharged except by payment of the Guarantee Payments in full
(without duplication).
SECTION 5.06 Subrogation. The Guarantor shall be subrogated to
all (if any) rights of the Holders against the Issuer in respect of any amounts
paid to the Holders by the Guarantor under this Guarantee Agreement; provided,
however, that the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any rights which
it may acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Guarantee Agreement,
if, at the time of any such payment, any amounts of Guarantee Payments are due
and unpaid under this Guarantee Agreement. If any amount shall be paid to the
Guarantor in violation of the preceding sentence, the Guarantor agrees to hold
such amount in trust for the Holders and to pay over such amount to the Holders.
SECTION 5.07 Independent Obligations. The Guarantor
acknowledges that its obligations hereunder are independent of the obligations
of the Issuer with respect to the Preferred Securities and that the Guarantor
shall be liable as principal and as debtor hereunder to make Guarantee Payments
pursuant to the terms of this Guarantee Agreement notwithstanding the occurrence
of any event referred to in subsections (a) through (g), inclusive, of Section
5.03.
ARTICLE VI
SUBORDINATION
SECTION 6.01 Subordination. This Guarantee Agreement will
constitute an unsecured obligation of the Guarantor and will rank (i)
subordinate and junior in right of payment to all other liabilities of the
Guarantor, including the Debentures, except those made pari passu or subordinate
by their terms, (ii) pari passu with the most senior preferred or preference
stock now or hereafter issued by the Guarantor and with any guarantee now or
hereafter entered into by the Guarantor in respect of any preferred or
preference stock of any Affiliate of the Guarantor, and (iii) senior to all
common stock of the Guarantor. Nothing in
-13-
this Section 6.01 shall apply to claims of, or payments to, the Guarantee
Trustee under or pursuant to Section 4.02 hereof.
ARTICLE VII
TERMINATION
SECTION 7.01 Termination. This Guarantee Agreement shall
terminate and be of no further force and effect upon: (i) full payment of the
Redemption Price of all Preferred Securities, and all accrued and unpaid
Distributions to the date of redemption, (ii) the distribution of Debentures to
Holders in exchange for all of the Preferred Securities or (iii) full payment of
the amounts payable in accordance with the Trust Agreement upon liquidation of
the Issuer. Notwithstanding the foregoing, this Guarantee Agreement will
continue to be effective or will be reinstated, as the case may be, if at any
time any Holder must restore payment of any sums paid with respect to the
Preferred Securities or under this Guarantee Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 Successors and Assigns. All guarantees and
agreements contained in this Guarantee Agreement shall bind the successors,
assigns, receivers, trustees and representatives of the Guarantor and shall
inure to the benefit of the Holders of the Preferred Securities then
outstanding. Except in connection with a consolidation, merger or sale involving
the Guarantor that is permitted under Article Eleven of the Indenture, the
Guarantor shall not assign its obligations hereunder.
SECTION 8.02 Amendments. This Guarantee Agreement may be
amended only by an instrument in writing entered into by the Guarantor and the
Guarantee Trustee. Except with respect to any changes which do not materially
adversely affect the rights of Holders (in which case no consent of Holders will
be required), this Guarantee Agreement may only be amended with the prior
approval of the Holders of not less than 66 2/3% in aggregate liquidation amount
of all the outstanding Preferred Securities. The provisions of Article VI of the
Trust Agreement concerning meetings of Holders shall apply to the giving of such
approval. Nothing herein contained shall be deemed to require that the Guarantee
Trustee enter into any amendment of this Guarantee Agreement.
SECTION 8.03 Notices. Any notice, request or other
communication required or permitted to be given hereunder shall be in writing,
duly signed by the party giving such notice, and delivered, telecopied or mailed
by first class mail as follows:
-14-
(a) if given to the Guarantor, to the address set forth below
or such other address as the Guarantor may give notice of to the
Holders of the Preferred Securities:
Minnesota Power & Light Company
30 West Superior Street
Duluth, Minnesota 55802
Facsimile No: (218) 723-3912
Attention: James K. Vizanko
(b) if given to the Issuer, in care of the Administrative
Trustees, at the Issuer's (and the Administrative Trustee's) address
set forth below or such other address as the Administrative Trustees on
behalf of the Issuer may give notice of to the Holders:
MP&L Capital I
c/o Minnesota Power & Light Company
30 West Superior Street
Duluth, Minnesota 55802
Facsimile No: (218) 723-3912
Attention: Administrative Trustees
(c) if given to the Guarantee Trustee, to the address set
forth below or such other address as the Guarantee Trustee may give
notice of to the Holders of the Preferred Securities:
The Bank of New York
101 Barclay Street, 21 West
New York, New York 10286
Facsimile No: (212) 815-5915
Attention: Corporate Trust Administration
(d) if given to any Holder, at the address set forth on the
books and records of the Issuer.
All notices hereunder shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
-15-
SECTION 8.04 Benefit. This Guarantee Agreement is solely for
the benefit of the Holders and, subject to Section 3.01(a), is not separately
transferable from the Preferred Securities.
SECTION 8.05 Interpretation. In this Guarantee Agreement,
unless the context otherwise requires:
(a) Capitalized terms used in this Guarantee Agreement but not
defined in the preamble hereto have the respective meanings assigned to
them in Section 1.01;
(b) a term defined anywhere in this Guarantee Agreement has
the same meaning throughout;
(c) all references to "the Guarantee Agreement" or "this
Guarantee Agreement" are to this Guarantee Agreement as modified,
supplemented or amended from time to time;
(d) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement
unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Guarantee Agreement unless otherwise defined
in this Guarantee Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice
versa; and
(g) the masculine, feminine or neuter genders used herein
shall include the masculine, feminine and neuter genders.
SECTION 8.06 Governing Law. This Guarantee Agreement shall be
governed by and construed and interpreted in accordance with the laws of the
State of New York.
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.
-16-
THIS GUARANTEE AGREEMENT is executed as of the day and year
first above written.
Minnesota Power & Light Company
By: D. G. Gartzke
---------------------------------------
Name: David G. Gartzke
Title: Senior Vice President-Finance
and Chief Financial Officer
The Bank of New York,
as Guarantee Trustee
By: Helen M. Cotiaux
---------------------------------------
Name: Helen M. Cotiaux
Title: Vice President
-17-
Exhibit 4(e)
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of March 20, 1996, between Minnesota Power
& Light Company, a Minnesota corporation ("Minnesota Power"), and MP&L Capital
I, a Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue its Common Securities (the
"Common Securities") to and receive Debentures from Minnesota Power and to issue
its 8.05% Quarterly Income Preferred Securities (the "Preferred Securities")
with such powers, preferences and special rights and restrictions as are set
forth in the Amended and Restated Trust Agreement of the Trust dated as of March
1, 1996 as the same may be amended from time to time (the "Trust Agreement");
WHEREAS, Minnesota Power is the issuer of the Debentures;
NOW, THEREFORE, in consideration of the acceptance by each
holder of the Preferred Securities, which acceptance Minnesota Power hereby
agrees shall benefit Minnesota Power and which acceptance Minnesota Power
acknowledges will be made in reliance upon the execution and delivery of this
Agreement, Minnesota Power, including in its capacity as holder of the Common
Securities, and the Trust hereby agree as follows:
ARTICLE I
Section 1.01. Assumption by Minnesota Power. Subject to the
terms and conditions hereof, Minnesota Power hereby irrevocably and
unconditionally assumes the full payment, when and as due, of any and all
Obligations (as hereinafter defined) to each person or entity to whom the Trust
is now or hereafter becomes indebted or liable (the "Beneficiaries"). As used
herein, "Obligations" means any indebtedness, expenses or liabilities of the
Trust, other than (i) obligations of the Trust to pay to holders of any
Preferred Securities or other similar interests in the Trust the amounts due
such holders pursuant to the terms of the Preferred Securities or such other
similar interests, as the case may be and (ii) obligations arising out of the
negligence, willful misconduct or bad faith of the Trustees of the Trust. This
Agreement is intended to be for the benefit of, and to be enforceable by, all
such Beneficiaries, whether or not such Beneficiaries have received notice
hereof.
Section 1.02. Term of Agreement. This Agreement shall
terminate and be of no further force and effect upon the date on which there are
no Beneficiaries remaining; provided, however, that this Agreement shall
continue to be effective or shall be reinstated, as the case may be, if at any
time any holder of Preferred Securities or any Beneficiary must restore payment
of any sums paid under the Preferred Securities, under any Obligation, under the
Guarantee Agreement dated the date hereof by Minnesota Power and The Bank of New
York, as guarantee trustee, or under this Agreement for any reason whatsoever.
This Agreement is continuing, irrevocable, unconditional and absolute.
Section 1.03. Waiver of Notice. Minnesota Power hereby waives
notice of acceptance of this Agreement and of any Obligation to which it applies
or may apply, and Minnesota Power hereby waives presentment, demand for payment,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
Section 1.04. No Impairment. The obligations, covenants,
agreements and duties of Minnesota Power under this Agreement shall in no way be
affected or impaired by reason of the happening from time to time of any of the
following:
(a) the extension of time for the payment by the Trust of all
or any portion of the Obligations or for the performance of any other obligation
under, arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the
part of the Beneficiaries to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Beneficiaries with respect to the Obligations
or any action on the part of the Trust granting indulgence or extension of any
kind; or
(c) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or readjustment
of debt of, or other similar proceedings affecting, the Trust or any of the
assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, Minnesota Power with respect to the happening of any of the
foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce this
Agreement directly against Minnesota Power and Minnesota Power waives any right
or remedy to require that any action be brought against the Trust or any other
person or entity before proceeding against Minnesota Power.
ARTICLE II
Section 2.01. Binding Effect. All guarantees and agreements
contained in this Agreement shall bind the successors, assigns, receivers,
trustees and representatives of Minnesota Power and shall inure to the benefit
of the Beneficiaries.
Section 2.02. Amendment. So long as there remains any
Beneficiary or any Preferred Securities of any series are outstanding, this
Agreement shall not be modified or amended in any manner adverse to such
Beneficiary or to the holders of the Preferred Securities.
Section 2.03. Notices. Any notice, request or other
communication required or permitted to be given hereunder shall be given in
writing by delivering the same against
receipt therefor by facsimile transmission (confirmed by mail), telex or by
registered or certified mail, addressed as follows (and if so given, shall be
deemed given when mailed or upon receipt of an answer-back, if sent by telex),
to wit:
MP&L Capital I
c/o Minnesota Power & Light Company
30 West Superior Street
Duluth, Minnesota 55802
Facsimile No.: (218) 723-3955
Attention: Philip R. Halverson
Minnesota Power & Light Company
30 West Superior Street
Duluth, Minnesota 55802
Facsimile No.: (218) 723-3912
Attention: James K. Vizanko
Section 2.04 THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES).
THIS AGREEMENT is executed as of the day and year first above
written.
MINNESOTA POWER & LIGHT COMPANY
By: D. G. Gartzke
-------------------------------------
Name: David G. Gartzke
Title: Senior Vice President-Finance
and Chief Financial Officer
MP&L CAPITAL I
By: Philip R. Halverson
-------------------------------------
Philip R. Halverson
not in his individual capacity, but
solely as Administrative Trustee
UT
1,000
3-MOS
DEC-31-1996
JAN-01-1996
MAR-31-1996
PER-BOOK
1,119,224
330,322
334,616
109,384
134,162
2,027,708
379,925
0
278,665
587,254
75,000
48,547
576,362
45,096
0
0
68,821
0
0
0
555,292
2,027,708
202,676
10,324
163,465
177,625
28,828
3,777
32,664
14,160
18,504
1,001
17,503
15,078
0
47,094
.61
.61
Includes $201,000 for Distributions on Company Obligated Mandatorily Redeemable
Preferred Securities of MP&L Capital I.